Jersey Unreported Judgments

2000/64

5 pages

ROYAL COURT

(Samedi Division)

 

12^th April, 2000.

 

Before:    Sir Philip Bailhache, Bailiff, and Jurats

                 de Veulle, Le Ruez, Rumfitt, Potter, Quérée,

                 Le Brocq, and Allo.

 

 

The Attorney General

-v-

Michael Thomas Kenward.

 

 

IN THE MATTER OF

The sentencing on 6^th March, 2000, by the Superior Number of the Royal Court (See Jersey Unreported Judgment of that date), to which the accused was remanded by the Inferior Number on 2^nd December, 1999, following a guilty plea entered on 29^th October to:

 

1 count of:      being knowingly concerned in the fraudulent evasion of the importation of a controlled drug, contrary to Article 77(b) of the Customs and Excise (General Provisions) (Jersey) Law, 1972: Count 1: heroin.

 

Reasoned Judgment on Application by Attorney General for a Confiscation Order

under Article 3 of the Drug Trafficking Offences (Jersey) Law, 1988.

 

Mrs. S. Sharpe, Crown Advocate

Advocate P. de C. Mourant for the Accused.

 

 

JUDGMENT

 

THE BAILIFF:

 

1.   On the 6th March, 2000, Michael Thomas Kenward appeared before the Superior Number for sentence, having pleaded guilty to one count of being knowingly concerned in the fraudulent evasion of the prohibition on importation of heroin.  The Crown moved that a confiscation order be made in relation to cash in the sum of £1,040 seized from Kenward.  Counsel for Kenward opposed the making of the order.  Having considered the submissions, the Court made a confiscation order and stated that it would give its reasons at a later date.  This we now proceed to do.

 

2.   The facts could not be more straightforward.  Kenward was detained at Jersey Airport and found to be in possession of 307 grams of heroin with a street value of over £90,000.  Customs officers also found £1,040 in cash.  Kenward admitted that £1,000 of that cash was his fee for transporting the drugs to Jersey.  It was conceded by Mr. Mourant for Kenward that, having regard to other benefits which Kenward had received, the value of Kenward's proceeds of drug trafficking exceeded £1,040 and that the entire sum of £1,040 was therefore liable to be confiscated.  After Kenward had been charged he was allocated counsel under the legal aid scheme.  On his application for legal aid Kenward had declared that he possessed £1,040 in cash notwithstanding that it had by that time been seized.  On 19th August, 1999, Messrs. Mourant du Feu and Jeune, the firm from which counsel had been appointed, wrote to Kenward setting out their terms of engagement and stating -

 

"We note that you have agreed a payment to us of £1,000 at your first meeting, but that this is held by Customs & Excise as an exhibit.  In fact we note that Customs & Excise hold £1,050 (sic) in cash and we are seeking the Crown's consent for these monies to be applied in due course towards your legal fees".

 

 

3.   Correspondence with the Law Officers of the Crown followed but that consent was not forthcoming.  Mr. Mourant accordingly submitted to the Court that a confiscation order of these admitted proceeds of drug trafficking should not be made so that Kenward could honour the engagement which he had made to his legal advisers.

 

4.   The material parts of the Drug Trafficking Offences (Jersey) Law 1988, as amended, provides as follows:

 

"Article 3

Confiscation orders

 

(1)        Where a person appears before the Court to be sentenced in respect of one or more drug trafficking offences ...  then -

 

(a)        If the Attorney General asks the Court to proceed under this Article;

.....

 

                        it may act as follows.

 

(2)        The Court may first determine whether he has benefited from drug trafficking.

 

(3)        For the purposes of this Law, a person who has at any time ...  received any payment or other reward in connection with drug trafficking carried on by him or another has benefited from drug trafficking.

 

(4)        If the Court determines that he has so benefited the Court may ...  determine in accordance with Article 6 the amount to be recovered in his case by virtue of this Article.

 

(5)        The Court may then ...

 

            (a)        order him to pay that amount;

 

                                                                        .....

 

Article 6

Amount to be recovered under confiscation order

 

(1)        Subject to paragraph (3) [which is not relevant for these purposes] the amount to be recovered in the defendant's case under the confiscation order shall be the amount the Court assesses to be the value of the defendant's proceeds of drug trafficking."

 

5.   The language employed by the draftsman is curious.  Article 3 appears to be permissive, whereas Article 6 appears to be mandatory.  It seems, therefore, and both counsel were agreed on this point, that the Court has a discretion as to whether to make a confiscation order but, if it determines that it should make an order, the amount to be recovered must be the value of the defendant's proceeds from drug trafficking.  Be that as it may, we agree that the Court must exercise a discretion in determining whether or not to make a confiscation order.

 

6.   Mr. Mourant conceded that the money in question was tainted but sought to draw a distinction between money which represented a fee for unlawful activity and money which had been stolen.  He accepted that the latter could not be charged in any way on the basis of the principle "nemo dat quod non habet".  But he submitted that the money in question belonged to Kenward and that he had been entitled to pledge it.   Counsel did not develop this argument but it is plainly not sustainable.  A pledge of tangible moveable property ("nantissement") cannot be validly achieved without a transfer of possession.  In this case the money remained in  the possession of the Customs & Excise Department.

 

7.   Mr. Mourant then argued that there was an obligation on the States, pursuant to the European Convention on Human Rights, to create a legal aid system by virtue of which lawyers received some remuneration for performing legal services for accused persons.  He accepted that advocates had, by virtue of their oath, a duty to assist "personnes indéfendues".  Nevertheless the failure of the States to create a properly funded system of legal aid arguably breached Article 4 of the Convention which provides:

 

"2.  No-one shall be required to perform forced or compulsory labour".

 

8.   Counsel referred us to the case of Van der Mussele v Belgium  (6 EHRR 163) which concerned the tradition of the Belgian Bar to provide legal representation, if necessary on a free basis, to indigent persons. We do not find it necessary in this case to determine what are the obligations of the States in relation to the provision of legal aid, because it is not relevant to the exercise of our discretion.  In our judgment this was a misguided and unfortunate application.  The money in question is, by common agreement, tainted in the sense that it represents a fee for an unlawful agreement to bring heroin into the Bailiwick.  It is the proceeds of drug trafficking.  The proposition that the Court should lend itself to an arrangement whereby tainted money should be used to pay lawyers for defending drug traffickers is not one which the Court finds attractive.  Advocates have a duty at customary law to defend accused persons who do not have the means to pay for their legal representation.  Even if a State does have an obligation in certain circumstances under the Convention to provide remuneration for advocates fulfilling that duty, then that is a matter for negotiation and agreement between the States and the Bar.  It would not constitute a reason, in our judgment, for exercising our discretion not to order the confiscation of the proceeds of drug trafficking.  For those reasons we dismissed the application.

 

Authorities.

 

Drug Trafficking Offences (Jersey) Law, 1988: Articles 3, 6.

 

European Convention on Human Rights: Article 4.

 

Van der Mussele-v-Belgium (6 EHRR 163).