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Recent UK law, possibly of interest to Bermuda authorities:

The forfeiture of goods - or more correctly, preventing the police acting outside of the law ....

This is a draft of the judgment to be handed down on Friday 26 November 1999 at 10.00 a.m. in Court No 67. 11 is confidential to Counsel and Solicitors, but the substance may be communicated to clients not more than two hours before the giving of judgment. The official version of the Judgment will be available from time shorthand writers once it has been approved by the judge.

The court is likely to wish to hand down its judgment in an approved final form. Counsel should therefore submit any list of typing corrections and other obvious errors in writing (nil returns are required) to time clerk to May 14 by fax to 0171 936 6467 by 12.00 noon on Thursday 25 November 1999, so that changes can be incorporated, if the Judge accepts them, In the handed down judgment.

A lengthy consideration of facts which deal with the seizure and retention of funds believed to be associated with drug trafficking, in the absence of any party being convicted of a trafficking offence.  However, the decision could be extended to other property.  An extract of the judgment is as follows:

  • In my judgment, the court should not extend the law in the way suggested.  Although from the Chief Constable’s perspective the money is the proceeds of crime, from another perspective the court should not, in my view, countenance expropriation by a public authority of money or property belonging to an individual for which there is no statutory authority. 

 

  • There is statutory machinery for the prosecution of those who deal in drugs and for the confiscation upon conviction of the proceeds of their drug dealing.  There is statutory machinery for the confiscation upon conviction of the proceeds of other serious crime.  There is statutory machinery for the forfeiture of the cash proceeds of drug trafficking which are being imported into or exported from the United Kingdom.

 

  • There is no statutory power to confiscate the proceeds of drug dealing within the United Kingdom where the person entitled to possession of the money is not convicted of a drug trafficking offence.

 

  • I recognise that there may be circumstances where for a variety of reasons a prosecution may not take place.   But that does not, in my view, justify expropriation by means of a defence to a civil claim for return of money which has been seized from persons who are not convicted.  

 

  • It is one thing to prosecute to conviction and to take positive steps authorised by statute to confiscate the proceeds of crime from the convicted defendant.  It is quite another to resist the claim of an innocent person by asserting some or all of the ingredients of what might have been a prosecution; or to effect confiscation in this way from a convicted person against whom statutory confiscation machinery has not been used.

 

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