THE EASTERN CARIBBEAN SUPREME COURT
ANTIGUA & BARBUDA
IN THE HIGH COURT OF JUSTICE
CLAIM NO. ANUHCV 2011/0830
BETWEEN:
CHERYL THOMPSON
v
THE ATTORNEY GENERAL OF ANTIGUA AND BARBUDA
Appearances:
Mr. Steadroy Benjamin for the Claimant
Ms. Bridget Nelson for the Respondent
2014: November 21
JUDGMENT
Claimant
Respondent
[1] HENRY, J.: By Amended Fixed Date Claim Form filed December 20, 2011, the claimant claims
against the defendant the following relief:
a) A Declaration that the provisions of the Trafficking in Persons (Prevention) Act, 2010
hereinafter called “The Act11 in whole or in part are void and of no effect in so far as they
violate the claimant’s right to protection of property, freedom of expression and liberty of
the person assured to the claimant by sections 3, 4, 9, and 12 of the Constitution of
Antigua and Barbuda.
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[2]
[3]
[4]
b) A Declaration that the penal provisions of section 13, 14, 15, 16, 17, 18, 21, 22, 23, 24(1),
25, 26, and 27(1) to 27(4) of the Act are so disproportionate to the conduct provided by the
Act that they constitute an arbitrary, intimidatory and unreasonable fetter upon the
claimant’s protection of the Law guaranteed by section 3 and assured to the claimant by
section 9 and 12 of the Constitution of Antigua and Barbuda.
c) A Declaration that the jurisdiction vested in the Magistrate’s Court under sections 15, 16,
17, 18, 21, 22, 23, 24(1), 25, 26 and 27(1) to 27(4) of the Act constitute an amendment of
the jurisdiction of the Supreme Court effected in a manner inconsistent with the provisions
of Section 47 of the Constitution and the vesting of the said jurisdiction in the Magistrate’s
Court is therefore void and of no effect.
d) A Declaration that the section 37 of the Act sub-titled (Forfeiture of Property on Conviction
is in breach of sections 3 and 9 of the Constitution in that it provides the deprivation of
property contrary to sections 3 and 8 of the Constitution.
e) A Declaration that the deprivation of property after and in addition to the imposition/fixing of
a sentence by the court of trial for an offence and as a consequence of the conviction (and
sentence) amounts to and constitutes an additional penalty for the said offence.
D A Declaration that the provision in the Act for the deprivation of property as a consequence
of the conviction for an offence, separate and apart from the sentence fixed by the trial
court, results in the convicted person being twice punished for the said offence and in
accordingly in breach of section 15 of the Constitution.
g) Costs
The claimant is a self-employed businesswoman. She owns and operates a clothing and
accessories store in St. Johns. She admits that she also promotes shows and concerts in Antigua
featuring well-known international reggae artists, international performers, entertainers, dancers
and musicians. In addition, she avers that over several years of business operations she has
travelled to several islands in the Caribbean, and in particular to Jamaica, to engage the services
of artists. Working in conjunction and deliberating with business associates in Jamaica, male and
female dancers were recruited to come to Antigua to perform at various functions. These
performers stayed in Antigua for various periods of time.
On the 25th October 2010, Parliament enacted the Trafficking in Persons (Prevention) Act, No. 12
of 2010 (the Act). In November 2011, following a report made to the police, the claimant was
invited to the Police Station where she was asked to explain several aspects of her business. She
was subsequently arrested and charged with several offences under the Act. She is alleged to
have breached sections 13, 15, 18 and 22 of the Act, which she denies.
The claimant asserts that she is entitled to the fundamental rights and freedom of expression, the
protection of property, the protection of privacy and liberty of the person assured to her by the
provisions of section 3, 4, 9, and 12 of the Constitution. Further, that the conception and
communication of thoughts and ideas are the linchpin of the business activities in which she is
engaged and from which she earns her livelihood and sustains her proprietary interest.
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I I
I I
[5] Otis Archibald, a Corporal of Police filed an affidavit in response. He states that he conducted
investigations into an initial complaint concerning the unlawful retention of a passport belonging to
a citizen of Jamaica. In the course of his investigations, at the premises rented by the claimant and
at the Jam Down Nightclub operated by the claimant, he discovered a number of exotic female
adult and child dancers in the employ of the claimant. He says he is aware that the claimant’s
shows feature exotic dancers.
[6] He states that all the women and children in the employ of the claimant were exotic dancers
performing at the claimant’s nightclub. They were recruited by the claimant via telephone either
directly or through her agent in Jamaica. The exotic dancers remained for the periods stated in the
claimant’s affidavit as illegal immigrants.
[7] He further states that he interviewed 18 exotic dancers who were housed at several apartments
rented by the claimant. The dancers ranged in age from 17 years to 34 years. According to him,
the claimant had no documentation consistent with the Labour Laws of Antigua and Barbuda, even
though the females were employed by her to perform as dancers. The claimant did not apply for
work permits for the dancers and there is no evidence that the standard procedure for recruiting
artists was observed by the claimant.
[8] Corporal Archibald states that he arrested the claimant for various offences against the Act; he
charged her with 52 offences.
[9] He asserts that the claimant has failed to particularize the specific provisions of sections 3, 4, 9, 12,
15 and 47 that have been, are being or are likely to be contravened in respect of the claimant.
That without knowing the specific provisions, he denies that any of the provisions of the sections of
the Constitution cited have been, are being or are likely to be contravened in respect of the
claimant.
Background
[1 O] Antigua and Barbuda became a signatory to The United Nations Convention against Transnational
Organized Crime (the Convention) on 26th September 2001. The Convention is the main
international instrument in the fight against transnational organized crime. It opened for signature
by Member States in Palermo, Italy, on 12-15 December 2000.
[11] The Convention is supplemented by three Protocols, which target specific areas and
manifestations of organized crime: the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children; the Protocol against the Smuggling of Migrants by Land,
Sea and Air; and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their
Parts and Components and Ammunition. Countries must become parties to the Convention itself
before they can become parties to any of the Protocols.
[12] The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and
Children (the Protocol), was adopted by General Assembly resolution 55/25. It entered into force
3
on 25 December 2003. It is the first global legally binding instrument with an agreed definition on
trafficking in persons. The expressed intention behind this definition is to facilitate convergence in
national approaches with regard to the establishment of domestic criminal offences that would
support efficient international cooperation in investigating and prosecuting trafficking in persons
cases. An additional objective of the Protocol is to protect and assist the victims of trafficking in
persons with full respect for their human rights.
[13] Article 3 of the Protocol defines Trafficking in persons as follows:
“Trafficking in persons” shall mean the recruitment, transportation,
transfer, harbouring or receipt of persons, by means of the threat or use of force
or other forms of coercion, of abduction, of fraud, of deception, of the abuse
of power or of a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having control over
another person, for the purpose of exploitation. Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to slavery,
servitude or the removal of organs;
[14] By Article 5 of the Protocol, each State Party agrees to adopt such legislative and other measures
as may be necessary to establish, as criminal offences, the conduct set forth in Article 3 of this
Protocol, when committed intentionally.
[15] Antigua and Barbuda became a party to the Protocol on 17th February 2010. Thereafter, The
Trafficking in Persons (Prevention) Act 2010, was enacted.
[16] The claimant now contends that certain sections of the Act are void and of no effect in so far as
they are in contravention of the fundamental rights provisions of the Constitution. The claimant
also claims that the jurisdiction vested in the Magistrate’s Court by the Act constitutes an
amendment of the jurisdiction of the Supreme Court effected in a manner that is inconsistent with
the provisions of section 47 of the Constitution, resulting in the jurisdiction in the Magistrate’s Court
being null and void. Further, the claimant seeks declarations that the “Forfeiture of Property”
provisions in the Act violate sections 3, 9 and 15 of the Constitution.
Presumption of Constitutionality
[17] In questions of adjudication upon the validity of ordinary legislation, there is a presumption of
constitutionality1. Justice Hyatali in Attorney General of Trinidad and Tobago v Mootoo2 stated
as follows:
1 The Attorney General and Anor v E. Ann Henry Goodwin et al Civil Appeal No 10of1997
2 (1976] 28 W.l.R. 304
4
“Before considering the findings and conclusions of the learned Judge it would be useful, I
think, to examine the function and responsibilities of a court and the canons by which it
should be guided when it is called upon to consider and determine the constitutional
validity of an enactment … In Fletcher v Peck Marshall C.J. defined the function and
responsibility in these terms: …… it is not on slight implication and vague conjecture that
the legislation is to be pronounced to have transcended its powers and its acts to be
considered as void. Hence the presumption is always in favour of the constitutionality of a
statute not against it; and the courts will not adjudge it invalid unless its violation of the
Constitution is, in their judgment, clear, complete and unmistakable.”
The Applicable Burden of Proof
[18] It was stated succinctly in the case of Nyambirai v. National Social Security Authority3:
“From a procedural aspect the onus is on the challenger to establish that the enactment
under attack goes further than is reasonably justifiable in a democratic society and not on
the State to show that it does not.”
[19] In Frederick Smith v Commissioner of Police4 the learned Chief Justice stated:
“The Constitution places the onus of establishing that such an action is not justifiable on
those attacking it. In the absence of evidence, except in the plainest of cases, that onus is
not discharged.”
Whether the Act, in whole or part, violates the claimant’s right to protection of property,
freedom of expression and liberty of the person
[20] The claimant seeks a declaration that the provisions of the Act in whole or in part are void and of
no effect in so far as they violate her right to protection of property, freedom of expression and
liberty of the person assured to her by sections 3, 4, 9 and 12 of the Constitution.
[21] Section 3 is the general declaration of the entitlement of every person in Antigua and Barbuda to
the fundamental rights and freedoms enumerated therein, but subject to respect for the rights and
freedoms of others and for the public interest. These rights and freedoms are:
{a) Life, liberty, security of the person, the enjoyment of property and the protection of the
law;
{b) Freedom of conscience, of expression {including freedom of the press) and of peaceful
assembly and association; and
{c) Protection for his family life, his personal privacy, the privacy of his home and other
property and from deprivation of property without fair compensation.
3 [1996] lLRC 64 AT PAGE 75
4 [1984] 50 W.l.R. 1
s
[22] The entitlement is subject to certain limitations designed to ensure that the enjoyment of the rights
and freedoms by any individual does not prejudice the rights and freedoms of others or the public
interest.
[23] Since the claimant also alleges violation of her right to protection of property, freedom of
expression and liberty of the person assured her specifically by sections 5, 9 and 12 of the
Constitution. The correct approach therefore is to read section 3 together with the relevant section
which specifically assures the right or freedom alleged to be violated, the language of each section
influencing the interpretation of the other5.
[24] Section 9 of the Constitution deals with the protection from deprivation of property. Subsection 4
which sets out certain limitations provide that nothing contained in or done under the authority of
any law shall be held to be inconsistent with or in contravention of subsection ( 1) of the section – to
the extent that the law in question makes provision for taking of possession or acquisition of any
property, interest or right-
(i)
(ii) By way of penalty for breach of the law or forfeiture in consequence of breach of
the law;
[25] Section 5 of the constitution, which deals with protection of the right to personal privacy provides:
“(1) No person shall be deprived of his personal property save as may be authorized by law in any
of the following cases, that is to say-
(a)
(b) In execution of the sentence or order of a court, whether established for Antigua and
Barbuda or some other country, in respect of a criminal offence of which he has been
convicted;
(~ upon reasonable suspicion of his having committed or of being about to commit a criminal
offence under any law;
[26] Section 12 provides:
“(1) Except with his own consent, no person shall be hindered in the enjoyment of his
freedom of expression.
[27] Subsection 4 provides that nothing contained in or done under the authority of any law shall be
held to be inconsistent with or in contravention of this section to the extent that the law in question
makes provision that is reasonably required-
55 Per Lord Woolf in La Compagnie Sucriere de Bel Ombre Ltee and Others v Government of Mauritius [1995] 3 LRC
494 at 501
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(i) In the interest of defence, public safety, public order, public morality or public health; or
(ii) For the purpose of protecting the reputations, rights and freedoms of other persons, …
[28] Having admitted in paragraph 3 of her affidavit that she owns and operates a clothing and
accessories store and that in addition she is a promoter of shows and concerts featuring reggae
artists and famous international performers, dancers and musicians, the claimant states: “I am
advised and do verily believe that I am entitled to the fundamental rights and freedom of
expression, the protection of property, the protection of privacy and liberty of the person assured to
me by the Constitution”. She further states in paragraph 5 that the conception and communication
of thoughts and ideas are the linchpin of the business activities in which she is engaged and
involved and from which pursuits she earns her livelihood and sustains her proprietary interest. In
paragraph 6, she repeats that as part of her business operations she travels to several islands in
the Caribbean and in particular Jamaica to engage the services of the artistes mentioned in
paragraph 3. She admits that working in conjunction with local business associates in Jamaica,
male and female dancers were recruited to come to Antigua to perform at various functions and
facilities. These performers have stayed for various periods of time. According to her for
approximately 15 years prior to 2010, she and other competing entrepreneurs and promoters
operated their recruitment of dancers and entertainers in the terms mentioned above. She then
admits to being arrested and charged with several offences under the provisions of the Act. She
then states her belief that her constitutional rights have been, are being and are likely to be
contravened.
[29] No particulars have been given as to how the Act violates the claimant’s right to protection of
property, freedom of expression and liberty of the person, or even what provisions of the Act she is
asserting are void.
[30] Given the presumption of constitutionality and the burden of proof the claimant must discharge, it is
not sufficient to merely allege that one’s fundamental rights have been or are likely to be violated.
The factual basis has to be set out. This aspect of the claim therefore fails.
Whether the Penal Provisions of the Act constitute an arbitrary, intimidatory and
unreasonable fetter on the Claimant’s protections of the Law guaranteed by the Constitution
[31] The claimant complains that section 13 to 18 and 21 to 27, the penal provisions of the Act, violate
sections 3, 9 and 12 of the Constitution. The impugned sections provide the penalties for the
various trafficking offences.
Section 13 provides:
“13. Offence of trafficking in persons
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A person who engages in trafficking in persons commits an offence and, subject to
sections 15 and 16, is liable on summary conviction to a fine not exceeding four hundred
thousand dollars or to imprisonment for a term not exceeding twenty years or to both.
Section 14: Directing, conspiring, inciting etc., the commission of trafficking in person
A person who-
( a) performs an act which is aimed at committing the offence of trafficking in
persons;
(b) incites, instigates, commands, directs, aids, advises, recruits, encourages or
procures another person to commit the offence of trafficking in persons; or
(c) conspires with another person to commit the offence of trafficking in persons or
to aid in the commission thereof;
commits an offence and, subject to sections 15 and 16, is liable on summary conviction to
a fine not exceeding four hundred thousand dollars or to imprisonment for a term not
exceeding twenty years or to both.
Section 15: Special penalty where trafficked person is a child
(1) Where an offence under section 13 or 14 is committed in relation to a child, subject
to subsections (2) and (3) and section 16, the person convicted for that offence is liable on
summary conviction to a fine not exceeding six hundred thousand dollars or to
imprisonment for a term not exceeding twenty-five years or to both.
(2) Where an offence under section 13 or 14 is committed for the sexual exploitation of a
child, subject to section 16, the person convicted for that offence is liable on summary
conviction to a fine not exceeding one million dollars or to imprisonment for a term not
exceeding twenty-five years or to both.
(3) A person who-
( a) sexually exploits a child which he knows or ought reasonably to know is a
trafficked child;
(b) takes, detains or restricts the personal liberty of a child for the purpose of
sexual exploitation;
commits an offence and is liable on summary conviction to a fine not exceeding one million dollars or to
imprisonment for a term not exceeding twenty-five years or to both.
Section 16: Aggravating circumstances
A person convicted of an offence under section 13 or 14 is liable on summary conviction to
a fine not exceeding one million dollars or to imprisonment for thirty years or to both if
certain circumstances are present.
Section 17. Debt bondage
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A person who intentionally engages in conduct that causes another person to enter into
debt bondage commits an offence and is liable on summary conviction to a fine not
exceeding four hundred thousand dollars or to imprisonment for a term not exceeding
twenty years or to both.
Section 18. Using services of trafficked person
(1) A person commits an offence if he intentionally-
(a) benefits, financially or otherwise, from the services of a trafficked person or of a
person he knows or ought reasonably to have known to be a trafficked person;
or
(b) uses or enables another person to use the services of a trafficked person or of
a person he knows or ought reasonably to have known to be a trafficked
person.
(2) A person who commits an offence under subsection (1) is liable on summary conviction
to a fine not exceeding four hundred thousand dollars or to imprisonment for a term not
exceeding twenty years or to both.”
[32] The objects of the Act as set out in section 3 are:
“(a) to give effect to the UN Protocol to Prevent, Suppress and Punish Trafficking in
Persons;
(b) to provide for the prosecution of persons involved in trafficking in persons and
related offences and for appropriate penalties;
(c) to provide for the prevention of trafficking in persons and for the protection of and
assistance to trafficked persons;
(d) to provide for effective enforcement measures; and
(e) generally to combat trafficking in persons.”
[33] The Convention and Protocol have given voice to the belief as expressed by the UN Secretary
General that trafficking of persons, particularly women and children for forced and exploitative
labour, including for sexual exploitation is one of the most egregious violations of human rights that
the United Nations has found6. Consequently, one would expect to see penalties which reflect the
abhorrence of the offence.
[34] To give sensible effect to these objectives requires not only the creation of offenses, but also
severe penalties for violation which would have the desired effect to prevent, suppress and punish
trafficking in persons.
6 Per Remarks by Kofi Annan, former Secretary General of the United Nations.
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[35) Again the claimant has set out no specific details of the way in which the legislation is arbitrary,
intimidatory, or unreasonable and how it fetters or violates her constitutional rights.
[36) Having considered the provisions of the Constitution, the Act and its expressed objectives, the
court is of the view that the penalty provisions are not arbitrary, intimadatory or unreasonably. The
penalties set out in these sections are expressed in terms of the maximum sentence, the trial
Judge would have the discretion to tailor the sentence to meet the Justice of each case. The
provisions provide penalties designed to deter those who may be inclined to commit such offenses.
The jurisdiction of the Magistrate Court under the Act
[37) The claimant asserts that the jurisdiction vested in the Magistrate’s Court under sections 15 – 18
and 21 – 27(4) constitutes an amendment of the jurisdiction of the Supreme Court effected in a
manner inconsistent with the provisions of section 47 of the Constitution and is therefore void.
[38) Counsel for the defendant acknowledges that the maximum periods of imprisonment that can be
imposed under the Act are very much in excess of the maximum period of imprisonment that the
Magistrate can impose under the Misuse of Drugs Act or any other Act. Indeed the sentencing
powers conferred on the Magistrate’s Court by the Act are without precedent in any other
democratic common law jurisdiction.
[39) The Supreme Court Order7 provides for the establishment of a Supreme Court which shall be a
superior court of record; and for the appointment of tenured judges of the court. Parliament may
only alter the provisions of the Supreme Court Order in the manner specified in section 47 of the
Constitution.
[40] Counsel for the defendant states that it is evident that the jurisdiction that the Supreme Court has
traditionally exercised in imposing severe sentences of imprisonment has been altered; that the
International Criminal Court considers imprisonment for periods of 25 years and more as life
sentences and that it appears evident from section 47 that ordinary laws, such as the Act, cannot
vest in the summary court a jurisdiction to impose severe periods of imprisonment that traditionally
formed part of the jurisdiction of the Supreme Court.
[41] The court is of the view that the offences enumerated above are in the nature of serious offenses.
Even though trafficking in persons and related offences may be relatively new to the statute books
of Antigua and Barbuda, Parliament considered the offences so serious as to provide penalties for
their violation that are comparable to life sentences. No one can doubt that the trial of serious
criminal offences forms a significant part of the jurisdiction that has historically characterized the
High Court.
[42) Counsel for the defendant refers to section 6 of the Act which provides that in the event of any
conflict or inconsistency between the provisions of the Act and those of any other written law the
7 Cap 422A of the Laws of Antigua and Barbuda
10
provisions of the Act shall prevail and the other written law shall be deemed to be superseded to
the extent of the inconsistency or conflict. This prevailing law clause, she submits has the express
effect of amending any conflicting law.
[43] Section 6 of the Act reads:
(1) The provisions of this Act are in addition to, and not in derogation of, the provisions of any
other written law relating to trafficking in persons.
(2) In the event of any conflict or inconsistency between the provisions of this Act and those of any
other written law, the provisions of this Act shall prevail and the conflicting or inconsistent
provisions of such other written law shall, to the extent of the conflict or inconsistency, be
deemed to be superseded.
[44] If the provisions of the Act were in conflict with the provisions in another ordinary legislation, then
this prevailing law clause would be effective. However, the provisions of the Act are in conflict with
section 47 of the Constitution and in light of section 2 of the Constitution, where any law that is
inconsistent with the Constitution, the Constitution shall prevail and the other law shall, to the
extent of the inconsistency, be void.
[45] Having admitted that the jurisdiction that the Supreme Court has traditionally exercised in imposing
severe sentences of imprisonment has been altered, and that such alteration or amendment was
not in accordance with section 47, Counsel for the defendant proposes that the invalid penalty
sections be severed from the Act which would result in those sections being replaced by section 36
(b) of the Small Charges Act Cap 405 until such time as the Legislature amends the Act. That
section provides that any person who contravenes any statutory instrument, the infringement of
which no specific punishment is prescribed, shall be liable to a fine not exceeding two hundred and
fifty dollars.
[46] However, as was stated in Hinds and Others V The Queens if the jurisdiction to try these offenses
were to remain with the Magistrate Court, the individual citizen could be deprived of the safeguard,
which the makers of the Constitution regarded as necessary, of having important questions
affecting his civil or criminal responsibilities determined by a court, composed of judges whose
independence from all local pressure by Parliament or by the executive was guaranteed by a
security of tenure more absolute than that provided by the Constitution for judges of inferior courts.
[47] Accordingly, the court finds that sections 15to18, 21through24 (1) and sections 25, 26, 27(1) to
27 (4) are unconstitutional and therefore null and void.
The Forfeiture Provisions of the Act
[48] Section 37 of the Act provides:-
8 [1977] A.C. 195
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(1) The property of a person convicted of the offence of trafficking in persons that was used or
obtained in the course of the offence and any benefit gained from the proceeds of the offence
is liable to be forfeited to the Crown.
(2) A conveyance, personal property, book, record, report or document seized in the exercise of
any power conferred under this Act is liable to be forfeited to the Crown.
(3) Any human organ seized in the exercise of any power conferred under this Act is liable to be
forfeited to the Crown and destroyed in the manner prescribed.
(4) Where a person is convicted of the offence of trafficking in persons, the court may, on
application by the Director of Public Prosecutions, order that anything liable to forfeiture under
subsection (1) or (2) be forfeited to the Crown.
(5) The court shall not make a forfeiture order in relation to subsection (2) unless it is satisfied
that-
( a) The person convicted owns the property seized; or
(b) The owner permitted the property to be used in the commission of the offence or trafficking in
persons.
[49) In regard to section 9 of the Constitution, the claimant avers that this section forbids the taking of
property from an individual without offering compensation for the said property. Additionally,
section 9(4)(a)(ii) of the Constitution permits for the taking possession or acquisition of any
property, interest or right by way of penalty for breach of the law or forfeiture in consequence of
breach of the law. However, for the forfeiture to come within the provisions of section 9(4)(a)(ii) of
the Constitution, the forfeiture order would have to form part of the sentence meted out to an
accused at the time of trial. That the word “convicted11 in section 37 (1) of the Act means verdict
and therefore the application to forfeit property under the said section must be made as a part of
the sentencing process.
[50] In addition, the provision in the Act for the deprivation of property as a consequence of the
conviction for an offence, separate and apart from the sentence fixed by the trial court, results in
the convicted person being twice punished for the said offence and is accordingly in breach of
section 15 of the Constitution
[51) Section 9 of the Constitution clearly contemplates the existence of statutes dealing with the taking
of possession of property, interest or right by way of forfeiture in consequence of breach of the law.
Such provisions are not inconsistent with or in contravention of section 9 (1) as long as the
provision is reasonably justifiable in a democratic society. No allegation has been made that the
provision is not reasonably justifiable in Antigua and Barbuda.
[52) Furthermore, the forfeiture provisions under the Act are civil proceedings. There are several
factors that point to this. As was noted in Walsh v Director of the Assets Recovery Agency9, in
an asset recovery proceeding no charge is preferred against the person. He does not acquire a
9 [2005) NICA 6
12
criminal conviction if it is found that the property is liable to forfeiture. He is not required to plead to
a charge. The provisions in sections 38 and 39 of the Act dealing with the procedures for
application are those associated with a civil claim. They make it clear that the forfeiture
proceedings are civil in nature.
[53] Lord Chief Justice Kerr, speaking for the court of Appeal in Walsh10 on the nature of proceedings
for the recovery of assets noted that the trial judge had stated the purpose and function of civil
recovery procedure. It is “to recover property obtained through unlawful conduct but not to penalize
or punish any person who is proved to have engaged in such conduct”. Kerr, LCJ drew a
distinction between confiscation orders and recovery proceedings, having accepted that Lord Steyn
in R v Rezvi11 had stated that one of the purposes of confiscation proceedings was to punish
convicted offenders. However, LCJ Kerr concluded that even if the proceeding in that case was to
be regarded as imposing a penalty, that was not sufficient to classify the proceeding as criminal for
purposes of Article 6 of the European Convention on Human Rights and Fundamental Freedoms.
[54] The court adopts the reasoning of Kerr, LCJ and find that the forfeiture proceedings in the Act are
akin to the asset recovery proceeding and are civil in nature. Its primary purpose is to recover
proceeds of crime; it is not to punish in the sense normally entailed in a criminal sanction.
Furthermore, even if the proceedings are to be regarded as imposing a penalty, this is not sufficient
to classify the proceedings as criminal for purposes of section 15 of the Constitution, which section
provides certain protection for a person “charged with a criminal offence.” Accordingly the court
finds that the forfeiture provisions of the Act do not violate sections 9 or 15 of the Constitution, and
the declarations sought by the claimant in respect of the forfeiture provisions are refused.
[55] Accordingly the court makes the following declarations and orders:
1. A declaration that the jurisdiction vested in the Magistrate’s Court under sections 15 through
18, 21 through 24(1) and sections 25, 26, 27(1) to 27(4) of the Act constitute an amendment of
the jurisdiction of the Supreme Court effected in a manner inconsistent with the provisions of
section 47 of the Constitution and the vesting of the said jurisdiction in the Magistrate’s Court is
therefore void and of no effect.
2. Parties are to file submissions on cost within 14 days
10 Supra, at paragraph 37
11 (2002] UKHL 1
13
High Cou Judge
Antigua & Barbuda
f
l
f I t