Jersey Unreported Judgments

[2008]JRC012

ROYAL COURT

(Samedi Division)

25^th January 2008

The Attorney General

-v-

Vitoriano Sousa Gomes

Application to adjourn confiscation hearing on Monday 28^th January, 2008.

S. M. Baker, Esq., Crown Advocate.

Advocate D. J. Hopwood for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Hopwood submits that the expression "exceptional circumstances" in Article 4 (3) of the Drug Trafficking Offences (Jersey) Law 1988 should be construed more narrowly than the same expression in the equivalent provisions in England. 

2.        He bases that submission upon the fact that, under the English legislation, there is a duty on the Court to proceed to consider whether to make a confiscation order, whereas under Article 3 of our Law the Court is simply given power to investigate and make a confiscation order if it thinks fit.  He refers me to the case of R -v- Soneji and another [2006] 1 AC 340 where it appears that some of the Law Lords placed some weight upon this aspect.  The issue before the House of Lords was more to do with the validity of any order in the event of failure to comply with particular requirements and this matter has come up very much at the last moment and no detailed arguments have been submitted.  I would require some persuasion that the expression "exceptional circumstances" in Article 4(3) (the whole of which is in almost identical terms to Article 72(a)(iii) of the English 1988 Act) meant something different in the two statutes.  I therefore make no ruling on the matter.  However, I am prepared for today's purposes to assume that this Court should adopt a slightly stricter approach than in England. 

3.        Ultimately it is a question of fact.  I must decide whether there are exceptional circumstances in this case which would allow me to postpone the matter beyond six months.  What has happened here is that the prosecution have been making enquiries of the Portuguese authorities in order, in particular, to see if they could find out whether the defendant has assets in Madeira.  I have been shown a chronology and I am quite satisfied that the prosecution have made persistent, prompt and repeated efforts to obtain the necessary information.  Eventually the Attorney General has in effect given up because of a failure to obtain a satisfactory response from the Madeiran authorities and accordingly the Attorney General's statement and all the accompanying papers were served on the defence and received by them this Monday.

4.        The defence contend that they cannot possibly go ahead with the case next Monday, which is the date fixed, because they need to make further enquiries and obtain further information in Madeira and elsewhere and they have not been able to do this until being served with the papers. 

5.        I am satisfied, therefore, in justice to all parties that the Court would require further information in order to make the determinations required under Article 4(1).  I am also satisfied that there are exceptional circumstances which justify my extending the period beyond six months.  The fact that enquiries have had to be made from Madeira and most importantly the fact that there has been a delay and/or failure on the part of the Madeiran authorities to respond, means in my judgment that these are exceptional circumstances.

6.        There is, therefore, jurisdiction for me to adjourn the case.  Now I have no application for a postponement before me.  The Crown say they are willing to proceed on Monday on the basis that the burden in connection with the ascertainment of realisable property rests on the defendant.  Mr Hopwood says that he cannot in justice go ahead on Monday because he is not ready to do so, but he has contended hitherto that there is no jurisdiction to postpone because there are no exceptional circumstances. 

7.        I think it is really for the defence now in the light of my ruling to decide whether they wish to make an application.

[Mr Hopwood makes an application for postponement]

8.        I adjourn this matter to the 3^rd and 4^th April, and there is liberty to apply for directions or on any other matter on which counsel require a ruling.

Authorities

Drug Trafficking Offences (Jersey) Law 1988.

R -v- Soneji and another [2006] 1 AC 340.