Jersey Unreported Judgments

Criminal (Hearing) - reasons - application by the Crown for confiscation of assets from the defendants.

[2015]JRC174

Royal Court

(Samedi)

24 August 2015

Before     :

Sir Christopher Pitchers, Commissioner, and Jurats Nicolle, Kerley, Liston, Blampied and Clapham

The Attorney General

-v-

Liam Thomas Richard Norris

Richard Christopher Norris

C. M. M. Yates, Esq., Crown Advocate.

Advocate C. Hall for Liam Norris.

Advocate J. N. Heywood for Richard Norris.

JUDGMENT

THE commissioner:

1.        On 4^th August, 2015, the Court announced its decision in relation to the Crown's application for confiscation of assets from the defendants under the Drug Trafficking Offences (Jersey) Law 1988.  What follows are full reasons for that decision. 

2.        The legal framework in which the decision was taken was agreed with counsel and is as follows in paragraphs 3 - 9 below.  There are three separate questions which the Court must ask itself in relation to each defendant. 

3.        Q1:  Has the defendant benefited from drug trafficking?  The burden of proving that he has is on the prosecution.  A benefit is any payment or reward in connection with drug trafficking.  They do not have to prove it beyond reasonable doubt, they must establish it on the balance of probabilities, subject to 5(iii) below.  The benefit is not limited to the offence of which he has been convicted, it can be a benefit from other drug trafficking.  

4.        Q2:  What is the amount of his benefit?  Again the burden of proving this is on the prosecution and again the standard they must achieve is on the balance of probabilities. 

5.        The existence of a benefit (question 1) or the amount of the benefit (question 2) may be proved in different ways:-

(i)        By normal direct evidence, e.g. the defendant's admission, or indirect evidence, e.g. inference from documents;

(ii)       By application of the assumptions permitted by the Law, that:

Any property received in the two years before the offence (the period chosen by the Crown rather than the six years allowed for by the Law) was payment or reward in connection with drug trafficking;

Any expenditure was met from payments made in connection with drug trafficking.

(iii)      By proof that the defendant has committed a drug trafficking offence in addition to the ones of which he has been convicted.  Unlike other ways of proving a benefit, this must be proved to the criminal standard. 

6.        Valuing the proceeds of previous drug deals:-

(i)        Proceeds means gross receipts i.e. turnover not profit;

(ii)       If there is a series of transactions, the sale price of each may be aggregated but it would be double counting to include both the purchase and the sale price;

(iii)      Where a transaction has not been completed, the value of the drugs unsold may be included in the benefit figure.

7.        Some further relevant matters:-

(i)        The assumptions at 5(ii) above are not to be made if, in respect of some or all of the items, all of the evidence, including any evidence given by the defendant, shows that the assumption was incorrect;

(ii)       A benefit is still the defendant's even if he has obtained it, in the sense of having control over it, jointly with others;

(iii)      It is open to the prosecution to argue that such large amounts of money passed through a defendant's hands that he must have hidden assets. 

8.        Q3: What sum is recoverable from the defendant?  Once the prosecution has established the amount of his benefit in a particular sum the Court then considers what sum is recoverable from him.  The starting point is the amount of his benefit.  If the defendant proves, on the balance of probabilities, that his realisable assets are in fact less than the amount that the Court has determined is his benefit from drug trafficking, the amount to be recovered is that lesser amount. 

Discretion

9.        At each stage the Law under which these proceedings are brought says that the Court "may" carry out one or other of the steps of the confiscation process.  This gives the Court a discretion whether to take that step or not.  However that discretion must be exercised on rational grounds.  The Court exercises any discretion against the background of the purpose of the statute.  There is no doubt that this is a severe regime, it was intended by the legislature to be so.  The purpose of the legislation is plainly to impose upon convicted defendants a severe regime for removing from them their proceeds of crime.  It is against that background that the Court in exercising its discretion considers the question of whether there is a real risk of serious injustice if the order is made.  The order must be proportionate.  The purpose of the discretion given by the law is to protect a defendant from unjust confiscation. 

10.      Have the defendants benefited from drug trafficking?  In respect of each defendant the answer is clearly 'yes' from their pleas of guilty, inferences from the evidence of payments into their accounts and application of the assumptions.  

11.      What is the amount of the benefit - Liam Norris?  There are two broad categories of benefit alleged by the Crown:-

(i)        The value of the drug importations;

(ii)       The schedule of property transferred and expenditure made during the relevant two years. 

The drug importations

12.      The Court rejected entirely Liam Norris's version of his drug dealing although it would give a figure for his benefit of over £1million.  His obvious lies about the role of others whether told out of family loyalty or a desire to shield other major participants, what the Court finds to be his false explanation for documents found in his possession and his attempt whilst in custody to bolster his case by arranging for the Movano van to be planted in B & Q car park all indicate that his evidence was false in most material particulars. 

13.      The Court is satisfied that he was heavily involved in the unsuccessful importation of 246kg, seized on 6^th March, 2012, jointly with his father and Gavin Samson.  He had control over it and therefore the purchase price of that consignment is properly to be regarded as part of his benefit. 

14.      The Court was also satisfied that the transaction of 22^nd November, 2012, was an importation of cannabis in which Liam Norris had a major role.  Although it is not possible to be certain precisely what some of the figures in the documents mean, it is clear that they are setting out a calculation of the profit of 163.8 kgs of cannabis in November 2011. 

15.      Div. 8.7 and 8.8 set out the cost of the various types of cannabis in England and the sale price in Jersey.  It is signed by Boy and dated 2^nd December, 2011.  Div. 21, the 'jigsaw' paper, has Liam Norris's writing on the back and a calculation of the profit from the importation on the front.  The Jersey sale figure of £1,056,080 is taken from the list of 2^nd December.  A number of sums are deducted including the purchase price of £464,600 calculated from the list referred to and a figure of £204,750 attributed to Egg.  This represents a commission or other deduction of £1,250 per kilo of the total importation of 163.8 kgs.  Gavin Samson is referred to by Liam Norris as 'the boy' in entries in his mobile phone address books.  It is an almost inevitable conclusion that he is Boy. 

16.      That figure of 204,750 reappears in Liam Norris's notebook Div. 10.1 where it is at the top of a column of his payments starting on 29^th November, 2011.  It appears on other scraps of paper found in one of Liam Norris's motorcycles. 

17.      The purchase price of that consignment is part of the Liam Norris's benefit from drug trafficking.  The exact price has been helpfully set out for the Court by the conspirators.  In the Court's judgment, the exercise of taking the average cost of the November importation and applying it to the unsuccessful importation is the correct one. 

18.      The Court considered the allegation that the earlier consignments for JB Roofing were also drug importations.  It was clear from the documentation relating to the November 2011 importation that there were others heavily involved, including but not limited to Gavin Samson.  The Crown must prove not only that such drug importations took place but also that Liam Norris played a role in them.  Although the evidence gives rise to considerable suspicion, the Court was not satisfied of this to the criminal standard required. 

The schedule of property and expenditure

19.      This consists of a series of payments to others either into bank accounts or onto currency cards to enable Jersey money to be changed into sterling or euros.  Most of this is admitted by Liam Norris.  Others he denies on evidence identical to those he admits.  The only difference between an admission and a denial seems to be because of family loyalty to his mother and father or a desire not to implicate people who have not been charged.  

20.      The Court is satisfied that all the amounts shown on the schedule are properly regarded as benefits from drug trafficking. 

21.      Total.  Liam Norris's total benefit from drug trafficking is thus assessed as:-

(i)        246kgs consignment: 246 x 2800= 688,800

(ii)       November 2011 importation:- 464,600

(iii)      Property and expenditure:- 711,104.05

(iv)      Total:- £1,864,504.05

22.      What is the amount of the benefit- Richard Norris?  The Crown only rely on the value of the drugs in the unsuccessful importation and the more modest schedule of property received. 

23.      Richard Norris admits by his plea that he was involved in the conspiracy to import the 246kgs but claims that his role was so minor that he cannot be said to have 'obtained' the drugs.  The Court does not agree.  He rented container 27.  When he paid the instalment of the rent on 13^th February, 2012, it was clearly for Liam Norris's purposes because he immediately demanded repayment of the money.  His dealings with Liam Norris and the container in the period between 16^th and 20^th February and his admission that he moved the drugs show his knowledge of them.  He had control over them from that time until his arrest on 6^th March.  That is ample evidence to support his having obtained the drugs jointly with his son and Gavin Samson. 

24.      The large payments into his personal and his business accounts and onto his Co-op card attract the assumptions but in any event he must have realised that they were the profits from drug dealing.  His son's motor-cycle business could not have been making such profits and would not have necessitated the large-scale conversion of Jersey money into sterling and euros. 

25.      Richard Norris's total benefit:-

(i)        Value of unsuccessful importation:- 688,800

(ii)       Property and expenditure:- 131,175

Total:- £819,975.

What is the amount to be realised - Liam Norris?

26.      The starting point is the amount of the benefit.  Liam Norris accepts that all the money and property set out in the Crown's schedule falls to be confiscated save for two items:-

(i)        €59,060 seized from JMS premises which he says belongs to Gavin Samson.  This money is clearly part of the proceeds of drug dealing and is in Liam Norris's possession and control.  It is therefore rightly part of his realisable assets and will be confiscated. 

(ii)       £9,100 recovered from his grandfather's house.  His grandfather gave evidence that this was part repayment of a loan of £30,000 from him to his grandson.  Even though the money no doubt was repaid from drug dealing profits, that does not mean that it is not lawfully the property of Mr Norris senior provided he did not realise what its provenance was.  There is no evidence that he did realise and therefore this sum will not be confiscated. 

27.      The amount to be recovered from Liam Norris includes two sums found at Richard Norris's house, £900 in his garage and £11,750 in his kitchen which both agree belong to Liam Norris.  It is entirely academic from whom they are confiscated since they could also have been regarded as in Richard Norris's possession and control and taken from him. 

28.      We need to clarify a point in relation to the motor-cycles and other property seized which will be sold by the Viscount.  We have included their estimated value in the figure given for realisable assets.  They will not fetch that exact net sum.  Accordingly, after the sale, an application will have to be made to vary the amount of the confiscation order, up or down, depending on the net proceeds of sale.  The Viscount is, of course, entitled to deduct the costs of sale from the gross proceeds. 

29.      There remains the question of 'hidden assets'.  The burden of proving that any difference between the benefit and the assets that the Crown have identified as realisable falls on the defendant.  The Crown's case involves the proposition that he received so much money he must have hidden some of it.  The prosecution do not have to show evidence of hidden assets, the defence must show that there are none. 

30.      Here Liam Norris asserts that he has nothing hidden, that he lived well and, as the accounts demonstrate, supported his mother through college and kept his father's unprofitable transport business afloat.  He could add that his arrest came unexpectedly and he had no time, as the many incriminating documents found demonstrate, to destroy evidence of hidden wealth.  Looking at the whole of the evidence, there is nothing suggesting in the case the existence of hidden assets.  It is quite clear that there were other important players in this affair including Gavin Samson, 'taxi' and 'wee man' who will have shared in the proceeds. 

31.      The confiscation order will be limited to the property found following his arrest giving a total figure of £252,392.41. 

What is the amount to be realised - Richard Norris?

32.      He accepts that the assets set out in the Crown schedule fall to be confiscated subject to two matters.  One is minor: there is a joint account with his mother with a credit balance of £1,048.28.  Half of that will be confiscated with half being regarded as belonging to his mother. 

33.      The other disputed item is more substantial.  He owns a house in his sole name in Burton-on-Trent valued at just under £100,000.  It is free of mortgage.  There is no doubt that some of the payments in respect of that mortgage must have been paid directly or indirectly from the profits of his son's drug dealing.  There is no doubt that it is properly regarded as a realisable asset. 

34.      The house is the home of Richard Norris's wife and step-children.  There is a procedure whereby a Jersey confiscation order could be enforced in England but it would entail court proceedings in which Mrs Norris would undoubtedly argue that she had a beneficial interest in the property and/or that her Art. 8 rights (protection of right to family life) were engaged.  In practice therefore the net benefit would be much less than the full value of the house. 

35.      The Court has a discretion in respect of all steps in these proceedings as set out above.  In respect of this part of the application the Court considers that to confiscate the house would be disproportionate and unjust and will exercise its discretion not to make an order which would result in Richard Norris' family being put out of their home.  

36.      In relation to hidden assets, the points already made in relation to Liam Norris apply even more strongly to Richard Norris.  Despite large injections of drug related cash from Liam Norris into his business, his overdraft remained close to its limit.  The changing of money was primarily for others' benefit.  The evidence very strongly suggests that he has no hidden assets. 

37.      The confiscation order for Richard Norris will be in the sum of £12,086.15.  That sum includes the estimated value of the Harley Davidson.  The comments set out in paragraph 29 as to the net sum it actually realises apply. 

38.      All the assets to be confiscated are exhibits, subject to orders of the court in England or Jersey or in the possession the Viscount.  Accordingly, the appropriate order is for the sums ordered to be paid forthwith.  We were not asked to consider a period in default in the event that we did not make any order in excess of the existing realisable assets.  That is presumably because the order should be regarded as having been satisfied because the assets are already in the possession and/or control of the authorities so no period in default is necessary. 

39.      After the Court had announced its decision, the defendants' advocates applied for costs.  That had to be against the Crown because the defendants had not been 'discharged from the prosecution or acquitted' under Art.2(c) of the Costs in Criminal Cases (Jersey) Law 1961 permitting the ordering of costs out of central funds.  The Court refused the application.  These proceedings were part of the sentencing process and clearly properly brought.  These are not civil proceedings. 

Authorities

Drug Trafficking Offences (Jersey) Law 1988.

Costs in Criminal Cases (Jersey) Law 1961.