Gov't agency using flawed reasoning to take over people's assets – Judge

High court judge, Bryan Sykes, has blasted the Finance Ministry's Assets Recovery Agency, which is responsible for taking the profit out of crime, for using what he calls an “illegitimate” approach to enforce the Proceeds of Crime Act (POCA).

POCA, which was enacted in 2007, places the burden of proof on the State to prove that properties to be restrained, and ultimately forfeited, were derived from criminal activity.

However, in discharging court-ordered restraints against the assets of four individuals last month, Justice Bryan Sykes pointed out that in a number of cases brought before him the Assets Recovery Agency through an “illegitimate form of reasoning”, appears to have shifted the burden of proof to accused persons instead.

The Judge says the illegitimate reasoning goes like this: ‘Party A has no legitimate income so far as the Assets Recovery Agency can determine; But Party A has property; So since Party A has no legitimate income to acquire property, Party A must have acquired it through crime.”

According to Justice Sykes, in the next step of illegitimate reasoning, the Assets Recovery Agency notes that Party A's property can be restrained for ultimate taking and if Party A does not want this to happen then Party A must prove that he legally acquired it.

Justice Sykes says there is a deep and profound flaw in this reasoning because the Assets Recovery Agency is not required to establish, even at the lowest level of legal proof, that Party A committed a criminal offence or benefited from the commission of a crime.

The Judge says the absence of income alone does not prove that a property was derived, directly or indirectly, from criminal activity.

Noting that there may be several explanations, he insisted that the legal starting point is that the State must make the case.

The judge says this position must be insisted to protect against oppressive conduct by the Assets Recovery Agency.

Justice Sykes’ ruling came in response to an application by the attorneys for Upert Smith, Gwendolyn Smith, Rebecca Smith, Roderick McKay and Rojay McKay to remove restraint orders imposed by the court in January.

The restraint order was granted after the Assets Recovery Agency indicated, in sworn affidavit, that United States law enforcement authorities informed them in September last year that Upert Smith and Roderick McKay were arrested in August on various drug charges.

As it turned out, when the Jamaica authorities were learning about the charges they had been dismissed a month earlier.

Justice Sykes said if it was indeed the case that the only information received on the men in September 2014 was that they were arrested by US law enforcement authorities it would have been extremely misleading because the criminal charges were dropped one month earlier.

The Assets Recovery Agency has said it did not have the information that the charges were dropped in August.

But the high court judge said the agency had sufficient time to double-check the information and to ensure its continued accuracy before applying for what he called a draconian restraint order.

According to the judge, once Smith and McKay were no longer charged, a very serious issue arose as to whether there was any reasonable cause to believe that any crime had been committed which could have led to money laundering.