Jersey Unreported Judgments

Confiscation Hearing.

[2024]JRC081

Royal Court

(Samedi)

10 April 2024

Before     :

Sir John Saunders, Commissioner, and Jurats Dulake and Entwistle.

His Majesty's Attorney General

-v-

Roy Anthony Jeanne

Michael John Timms

IN THE MATTER OF ROY ANTHONY JEANNE AND MICHAEL JOHN TIMMS

AND IN THE MATTER OF THE PROCEEDS OF CRIME (JERSEY) LAW 1999.

Crown Advocate S. C. Brown for HM Attorney General.

Advocate M. L. A. Pallot for Defendant Jeanne.

Advocate M. L. Preston for Defendant Timms

Advocate N. B. R. Mière for Mrs Timms and Others

JUDGMENT

THE Commissioner:

1.        I will give our ruling on the various issues that we have had to determine.  First can I say we are all grateful to the Advocates for identifying the issues we had to consider and for the very cogent arguments that they put before us. 

2.        As I emphasised at the beginning of the hearing, but it is worth repeating, the aim of the Confiscation regime is to ensure that criminals do not get away with the proceeds of their crime as far as that is possible to achieve.  Inevitably in doing that innocent people, often members of the criminal's family will suffer, but that is I am afraid an inevitable consequence of ensuring that the criminal does not benefit.  We will now deal with the issues that have been identified.

3.        First of all, we have been invited to add parties to this case in these circumstances.  Mr Timms' main asset is that he is part owner of a property, a substantial property, with a number of other people who live there. His share of the property is his principal asset which will have to be realised to pay a Confiscation order.  The co-owners of the premises, mainly members of Mr Timms family, have been represented before us today and seek to be made parties to the action so that they can be informed as to the proceedings and can be in a position to make representations to protect their interest at a time when the order is executed.  The prosecution accept that we have the power to join them as parties and I believe accept the good sense of that happening in order to enable the proceedings to continue in a sensible way.

4.        The submissions that the additional parties have made to us have been of assistance  in making decisions.  We also recognise that this is an unusual case on the facts where so many different owners own the same property.  We make it clear that we do not intend in any way to set a precedent, but we are content to add them as parties to these Confiscation proceedings for the purposes of this case.  That will involve the additional parties filing further evidence to update the Viscount on whether they are achieving what they seek to achieve which is to arrange a private sale of the property, probably to other members of the family.  In any event it will be necessary for the added parties to keep in touch with the Viscount as proceedings go along.  There will need to be a timetable for serving affidavits so that when the time to pay is coming to an end and an execution has to take place, the matter can proceed smoothly. 

5.        It has been agreed between the parties that 12 months in relation to both of the Confiscation orders is a reasonable time to pay.  That of course very much depends on how matters proceed, and we will give liberty to apply, if that is necessary, in order to enable the parties to bring the matter back before the court if there are problems in realising the assets. 

6.        What we do want to make clear however, is that 12 months is not an arbitrary period and that if we get to 9 months down the line and nothing has happened, the court will automatically extend the period.  12 months does seem a reasonable time to us in order to achieve the sale of the properties in both cases and therefore it should not be believed that if things are just left in abeyance that somehow the period will be extended.  We are confident that that will not happen.  So that was the first issue that we had to decide.

7.        Secondly, we needed to consider whether a sentence of imprisonment in default should be imposed.  The reason for doing that is not to punish the person again for the original offence, they are already serving that punishment, but to ensure that those who do have to pay a confiscation order do not think that it is better to serve a further sentence rather than having to find the money.

8.        Mr Jeanne accepts that a default sentence of 3½ years is appropriate in his case and we agree.

9.        In Mr. Timms case he argues that there should be no sentence in default or, if there is, it should be less than 3½ years.  We agree with the prosecution that it would be a very exceptional case where no sentence in default was imposed for failure to meet the Confiscation order. We do accept that as a matter of fairness a lesser sentence in default should be imposed in Mr Timms case.  While that is not necessarily logical because of the purpose of the sentence we think that it is necessary to impose a reduced period in order to do justice between the parties.  There is no doubt that Mr Jeanne's part in these offences was considerably in excess of the part played by Mr Timms.  Taking all the matters into account we consider that an appropriate sentence in default is one of 2 years' imprisonment.  We make that order; we believe, in the fairly safe knowledge that the order will be met and there will be no question of that sentence having to be served. 

10.     The prosecution makes an application for costs against both of these two Defendants, different considerations apply to them.  The prosecution say that an order should be made against Mr Jeanne despite the fact that all his realisable assets have already been assessed to make a Confiscation order, so if all his realisable assets are used to make the Confiscation order he will have no money to pay a Costs Order and it is a well established principle that a Costs Order should not be made where the Defendant does not have the money to meet it.  What the prosecution proposes in this case, is that in order to make the order for costs, we should deduct the amount of that order from the monies raised under the confiscation order before we make the compensation order.  So the Confiscation order, which it is accepted should fund a compensation order to Jersey Mutual, will be used in part to pay the costs of the prosecution. 

11.     While we accept the proposition as a matter of law that when a Defendant is in a financial position to pay costs he should do so, we doubt that there is a power in the court to deduct costs from a Confiscation order which is made on the basis of all the realisable assets.  We are not making a final or definite decision as a matter of law because we have not heard it sufficiently argued, but on what we have so far heard we are doubtful that as a matter of law we can do what the prosecution are asking us to do.  In any event, balancing the interests of the Jersey Mutual and the prosecution we do not think that this is an appropriate case for the money to be taken from Jersey Mutual to pay the costs of the prosecution.

12.     Mr Timms is in a different position because on the figures that we have seen he has more assets than are to be needed to meet the Confiscation order, so he does have the money to pay a Compensation order from the monies raised by the confiscation order and have assets left over.  As a matter of principle the court considers that, as with anyone who has involved the prosecution in costs and is in a position to pay, Mr Timms should make a contribution to the costs of the prosecution.  We accept that it would be unfair to Mr. Timms to pay a disproportionate amount of the costs when Mr Jeanne who is much more involved and caused most of the investigation is not paying any.  For that reason, while accepting the principle that costs should be paid to the prosecution, we limit the costs in Mr Timms case to a sum of £10,000 which we direct that he should pay. 

13.      The figures have been agreed between the parties.  The benefit in the case of Mr Jeanne was in the sum of £4,541,582.60 that is an agreed figure and includes an uplift to reflect the increase in the purchasing value of the money that he had.  It is also agreed that his realisable assets are £511,323.06.  The Confiscation order therefore is in the sum of the realisable assets because that is how the law is structured and that has to be paid, as I have indicated within 12 months.  It is accepted that that money should be used to meet a Compensation order to Jersey Mutual and so we order that Compensation order is made. 

14.     In Mr Timms case the benefit has been agreed and the benefit that he got from his crimes is £144,870.50.  His realisable assets which have very largely come from his share in the property are in the sum of £585,758.30 so he is in a financial position to repay all of the benefit he achieved.  

15.     We make the Confiscation Order in the sum of £144,870.50 and that will be paid towards the Compensation order to be made to Jersey Mutual, and as I have said, we order him to pay £10,000 costs.

16.     In relation to the Confiscation order, as I have already indicated there will be a default sentence in the case of Mr Jeanne of 3½ years, and a default sentence in the case of Mr Timms of 2 years.  

17.     We will not expect enforcement action to be taken on the costs until the realisation of the assets has been achieved or the confiscation order paid whichever is the sooner.. 

Authorities

Proceeds of Crime (Jersey) Law 1999.