Jersey Unreported Judgments

[2009]JRC214

royal court

(Samedi Division)

17^th November 2009

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats de Veulle and Tibbo.

 

IN THE MATTER OF THE REPRESENTATION OF HER MAJESTY'S ATTORNEY GENERAL IN THE MATTER OF SCOTT JOSEPH MILLER

A. J. Belhomme, Esq., Crown Advocate.

Scott Miller was not present and unrepresented.

judgment

the bailiff:

1.        The application before us this morning is one made by the Attorney General for an order under Article 9(2) of the Proceeds of Crime (Cash Seizure)(Jersey) Law 2008 forfeiting £8,000 in cash found in the possession of one Scott Joseph Miller at the airport on 24^th February, 2009. 

2.        Before turning to the application itself there is a preliminary procedural point which we must consider, namely whether in applications of this nature, the Attorney General must seek leave to serve the proceedings out of the jurisdiction under the Service of Process (Jersey Rules) 1994.  One starts with the 2008 Law itself.  Article 9 confers power upon the Court to make a forfeiture order in respect of tainted cash.  Article 9(3) states specifically that proceedings under Article 9 are civil proceedings.  This is repeated in Article 15 which states that all proceedings under the 2008 law are civil proceedings except those in respect of Article 13. 

3.        Civil proceedings are dealt with under Article 2 of the Service of Process and Taking of Evidence (Jersey) Law 1960 which provides that any process in any civil or commercial matter summonsing or citing a person outside Jersey to appear before a court in Jersey may be served in such cases as may be prescribed by Rules of Court.  One turns therefore to the relevant Rules of Court which are the Service of Process (Jersey) Rules 1994.  Rule 1 begins by making it clear that the expression "defendant" where used in the rules includes the respondent to a representation, as is the case here.  The Attorney General always brings proceedings of this nature by means of a representation.

4.        Rule 5 says that no summons shall be served outside Jersey without the leave of the Court.  Rule 7 is the important rule.  It begins by providing "Service out of the jurisdiction of a summons may be allowed by the court whenever", and there then follow nineteen categories of case where service out of the jurisdiction is permitted.  The relevant category for us is at paragraph (o) and it reads:-

"(o) The claim is made under the Drug Trafficking Offences (Jersey) Law 1988"

That statute contained at Article 32 a broadly equivalent power to that contained in Article 9 of the 2008 Law to forfeit cash, save that the 1988 Law referred only to cash which represented the proceeds of drug trafficking whereas Article 9 of the 2008 Law allows forfeiture of cash which is tainted cash, which in turn is defined as being the proceeds of any criminal conduct.  Article 32 was repealed by the 2008 Law and has been replaced, as we say, by the wider provisions of Article 9 of the 2008 Law.  However, Rule 7(o) of the 1994 Rules still refers to the 1988 Law and makes no reference to the 2008 Law. 

5.        Crown Advocate Belhomme has referred us to Article 17(1) of the Interpretation (Jersey) Law 1954 which provides:-

"Where any enactment, whether passed before or after the commencement of this Law, repeals and re-enacts, with or without modification, any provisions of a former enactment, references in any other enactment to the provisions so repealed shall, unless the contrary intention appears, be construed as references to the provisions so re-enacted".

6.        Pulling all these matter together it seems to us that the position is as follows:-

(i)        The present proceedings are civil proceedings; therefore they are covered by the 1960 Law.  It follows that service out of the jurisdiction may only take place if the proceedings fall within Rule 7 of the 1994 Rules.

(ii)       Rule 7(o) covered claims by the Attorney General for forfeiture of cash under the 1988 Law in respect of the proceeds of drug trafficking.

(iii)      Although the 2008 Law is not mentioned in Rule 7 of the 1994 Rules, we hold that Article 17(1) of the Interpretation Law enables us to construe references to claims to forfeiture under the 1998 Law as references to claims to forfeiture under the 2008 Law. 

Accordingly we find that the Attorney General should have made an application for leave to serve out of the jurisdiction under Rule 7 and that that application should have complied with Rule 9 of the 1994 Rules. 

7.        Now he did not in fact make such an application.  He did apply for leave to serve the proceedings on Mr Miller in the United Kingdom because the Act of Court dated 14^th August, made upon first presentation of the Representation, ordered that a copy of the Representation should be served by recorded delivery on Mr Miller at 15 Dovecote House, Liverpool.  However no affidavit in appropriate form was sworn.  Nevertheless, the Court clearly envisaged service out of the jurisdiction on Mr Miller at what was then thought to be his address.  In fact it transpired that Mr Miller had moved from that address and he was eventually served in person at his new address of 16 Petula Close, Liverpool by an officer of the Merseyside Police.  This occurred on 15^th September. 

8.        Despite that personal service Mr Miller did not appear at the return date which had been fixed at that time and of which he was notified; nor has he made any contact with the Attorney General's Chambers or any of the agencies in Jersey who have been investigating this matter. 

9.        On the return date, the case was in fact adjourned because of the procedural point to which we have referred and it was eventually adjourned to today's date.  Mr Miller was notified by a letter sent by recorded delivery of today's date.  Unfortunately it would appear that that letter was not delivered because there was no-one there at the time.  A card was left telling Mr Miller to make contact with the Post Office but he did not do so and the letter has been returned to the Attorney General's Chambers.  It does seem therefore as if Mr Miller probably does not know of today's date.  However, he had evinced a clear intention to play no part in these proceedings because, having been served personally, he did not turn up at the original return date of which he had been notified, nor, as we say, has he made any contact with any of the agencies.

10.      Given that the technical requirements of the 1994 Rules have not been complied with, we must consider whether we can proceed today or whether we should direct that the proceedings be re-served after an application brought properly under the Rules.  We would refer to the case of United Capital Corporation Limited-v-Bender [2006] JLR 001 which dealt with Rule 10/6 of the Royal Court Rules which provides:-

"Subject to Rule 10/7 non-compliance with Rules of Court, or with any rule of practice for the time being in force, shall not render any proceeding void unless the Court so directs, but the proceeding may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with, in such manner and on such terms as the Court thinks fit."

The Court in Bender made it clear that the days are gone when proceedings were routinely defeated by technicalities and the Court is nowadays much more interested in looking at the substance and justice of the matter.  The Rule gives the Court wide power to overlook or cure any technical defects if it is satisfied that no injustice has been caused.

11.      We are quite satisfied that no injustice has been caused by the Attorney General's failure to comply strictly with the requirements of the Rules on this occasion.  The Court did determine that leave should be given to serve the proceedings on Mr Miller outside Jersey.  We are also satisfied that the proceedings have in fact been served on him and that he is fully aware of the proceedings and has had ample opportunity to take part in the proceedings should he so wish.  We therefore think there would be no injustice in treating the proceedings as having been properly served on him and conforming with the substance of the matter today.

12.      So we turn to consider the merits of the application.  In briefest outline Mr Miller was stopped at 6 55pm on 24^th February, 2009, in the departures hall at Jersey Airport when he was due to board a flight to Manchester.  When spoken to initially he said that he was carrying no cash but he was then informed that his luggage was to be retrieved from the airline and that he was to be escorted to the departure gate for the purposes of a search.  Once there he was asked if a blue suitcase which had been retrieved from the airline was his and he replied it was.  He was asked if the suitcase contained any prohibited or restricted goods or any cash.  He initially replied that it contained about £7,000 in cash but then stated that in fact it contained £8,000.  Officers searched the suitcase and found £8,000 in cash in mixed denomination notes wrapped inside a white towel in a carrier bag.  Miller stated at that time that the cash belonged to a friend and he was taking it to Liverpool to purchase a car.  However, he failed to provide any further details about this person such as his name, surname, address or other contact details so as to enable the officers to verify the legitimacy of the cash.  The cash was seized and since then it has been detained under the relevant provisions.  When he was told that the cash was to be detained Miller then stated that the cash was his.

13.      Since then, investigations have been carried out and this application is now made for a forfeiture order.  We remind ourselves of the terms of Article 9(2) of the 2008 Law which, having referred at Article 9(1) to the ability of the Attorney General to apply to the Royal Court for an order than any cash which has been seized should be forfeited, provides :-

"(2) The Royal Court shall, if it receives an application under paragraph (1) in relation to any cash seized and detained under this Law, make an order (a forfeiture order) forfeiting the cash unless the person against whom the order would be made, satisfies the court that the cash is not tainted cash."

14.      We have considered the matters put forward before us in this case and we are quite satisfied that this is tainted cash.  Certainly Mr Miller has not satisfied the Court that the cash is not tainted cash.  We would refer in particular to the following matters:-

(i)        Mr Miller was unable to provide a plausible reason for his travel to Jersey.  He was allegedly visiting his girlfriend in the Island but he failed to provide her address or contact number.

(ii)       When he was initially spoken to in the departures hall and asked to disclose the value of any cash he was carrying in his baggage or on his person, he stated he was not carrying any cash.  It was only on his baggage being retrieved that he said that he was carrying £7,000.  He later changed this to £8,000.

(iii)      The high proportion of Jersey currency in the cash suggests that the cash was not carried into the Island by Mr Miller when he arrived.

(iv)      He initially stated that the cash belonged to a friend and that he was taking it to Liverpool to purchase a car but he failed to provide any further details which would enable this friend to be identified.  He therefore did not produce a cogent plausible justification for exporting the cash at the time.

(v)       When informed the cash was to be seized he changed his story and stated that it belonged to him.

(vi)      He said at the time that he was currently unemployed and receiving benefits in the United Kingdom and this has since been confirmed with the United Kingdom authorities by the investigating Jersey authorities.  It follows that his possession of such a large sum of cash cannot be reconciled with his personal circumstances.

(vii)     He has a number of previous convictions including convictions for drug offences.

(viii)    Since the cash was received no contact has been received from him and no representation for the return of the money has been received.  It is right to record that in February 2009, a telephone call was received at Customs and Immigration from a solicitor in Liverpool who said he was enquiring on behalf of Mr Miller as to the status of the case.  He was informed that a cash detention order had been granted for a period of three months and that Mr Miller had been sent notification of this by recorded delivery.  On 2^nd April a telephone call was made by an officer by the Joint Financial Crimes Unit to the solicitor to enquire if Mr Miller had made any further contact with him.  The solicitor stated he received no instructions to act for Mr Miller in respect of the cash seizure and, as we say, no further contact of any nature has been received from Mr Miller in relation to the cash.

Putting all these matters together the Jurats are entirely satisfied that the correct inference to draw is that this is tainted cash and accordingly the Court makes an order forfeiting it under Article 9(2).

15.      We would refer finally to four matters by way of postscript:-

(i)        We urge that Rule 7(o) of the 1994 Rules be amended as soon as possible so as to refer specifically to the 2008 Law rather than the 1988 Law.

(ii)       The application for leave to serve out of the jurisdiction when an application is brought under the 2008 Law can be made when the representation is first presented to the Court; but of course it will need to be accompanied by an affidavit which complies with Rule 9 of the 1994 Rules.  There is certainly no need to make a separate application before the Master.

(iii)      The amended form of summons which has to be served with the proceedings under the 1994 Rules as produced to us by Crown Advocate Belhomme would appear to be satisfactory and to be as close as may be appropriate to the draft contained in the Schedule to the 1994 Rules.

(iv)      The starting point should be that proceedings under Article 9 (2) should be served personally given that the application is to forfeit cash which on its face belongs to the person who is the subject of the application.  Clearly there is a discretion in the Court to dispense with personal service and order some other form of service if the circumstances justify it, but it will be for the Attorney General to explain why that should be so in any particular case.

16.      That concludes matters and we make the order sought.

Authorities

Proceeds of Crime (Cash Seizure)(Jersey) Law 2008.

Service of Process (Jersey Rules) 1994.

Service of Process of Taking of Evidence (Jersey) Law 1960.

Interpretation (Jersey) Law 1954.

United Capital Corporation Limited-v-Bender [2006] JLR 001.