Magistrate Bertlyn Reynolds et Al v Peter Hippolyte et Al

On 26 ^th May 2010, at around 2:15 a.m., the respondents were arrested following a search of vehicle bearing Registration Number 1261. The search revealed foreign currency amounting to approximately EC$982,301.76 (“the cash”). The cash was seized and retained by the police with then acting Corporal of Police Alain James charging the respondents with unlawful possession of the cash under section 441 of the Criminal Code. The police retained the cash pursuant to the said criminal proceedings.

The respondents then challenged the constitutionality of section 441 of the Criminal Code with both the High Court and this Court subsequently confirming the unconstitutionality of section 441. The criminal charges were accordingly dismissed on 31 ^st December 2018 with a notice of discontinuance being served on the Commissioner of Police on 4 ^th January 2019. On 24 ^th April 2019, WPC Dalia Jules (“WPC Jules”), acting in her capacity as a financial investigator of the Financial Intelligence Authority (“FIA”) and on behalf of the Director of the FIA, formally seized the cash from Corporal Alain James pursuant to section 29A of the Proceeds of Crime Act (“POCA”). She then applied for a continued detention order on 25 ^th April 2019, which was granted on 26 ^th April 2019 by the learned magistrate. Up until this date, the cash had been in possession of the police for almost 9 years.

On 30 ^th April 2019, counsel for the respondents filed an application challenging the jurisdiction of the learned magistrate to make the continued detention order which was heard on 26 ^th July 2019. A further order continuing the detention order was made to run from 26 ^th July 2019 to 23 ^rd August 2019 to allow the court to deliver its ruling. On 19 ^th August 2019, the learned magistrate dismissed the application finding inter alia that the Royal Saint Lucia Police Force (“RSLPF”) acted reasonably in the period between the notice of discontinuance of the criminal proceedings and the seizure by the FIA and that the possession was lawful in the circumstances. The learned magistrate also found that a magistrate still had jurisdiction to hear and grant a continued detention order notwithstanding that criminal proceedings under the Criminal Code had been discontinued. Finally, the learned magistrate concluded that the suspicion that the cash was tainted was reasonable within the meaning of section 29A of the POCA and was therefore not persuaded to grant the respondents' application for the release of the cash.

Counsel for the respondents applied to the High Court for leave to seek judicial review of the magistrate's decision and leave was granted on 9 ^th February 2022. Among the reliefs sought, was a declaration that the decision of the learned magistrate of 26 ^th April 2019 was ultra vires section 29A of the POCA. The learned judge in the High Court, considering the application for judicial review, concluded that the learned magistrate erred in granting the continued detention order on 26 ^th April 2019. The learned judge found following the discontinuance of the criminal proceedings, the cash was unlawfully detained by the police for a period in excess of the 72 hours stipulated by section 29A of the POCA. Further, that the Money Laundering (Prevention) Act (“MLPA”) did not confer any power on the FIA to seize or detain proceeds of criminal conduct or to prosecute anyone in relation to those proceeds and as it appears that WPC Jules' seizure was actuated by the directions of another person, she did not have reasonable grounds for suspicion within the meaning of section 29A. The learned judge set aside the detention order made by the magistrate.

Dissatisfied with the decision of the learned judge, the appellants appealed. The two issues for determination on appeal are: i) whether the learned magistrate acted ultra vires the POCA when she granted the continued detention order on 26 ^th April 2019 following a purported seizure on 24 ^th April 2019; and (ii) whether the police were in lawful possession of the cash between the period 1 ^st January 2019 and 23 ^rd April 2019 following the prosecution's discontinuance of the criminal trial and whether this was a relevant consideration of the learned magistrate in arriving at her decision to grant the continued detention order.

Held: allowing the appeal; setting aside the judgment of the learned judge; and ordering costs to the appellants in this Court and in the court below, such costs to be assessed unless agreed within 21 days, that:

• 1. In conducting a judicial review of the decision of a statutory or public body, a judge's jurisdiction is very narrow and is limited to evaluating the decision solely within the framework of administrative law principles. This entails considering the grounds of illegality, irrationality or Wednesbury unreasonableness, and procedural impropriety. In this case, the learned judge treated judicial review as an original hearing of the matter and went about his own fact-finding mission while impugning the facts accepted by the learned magistrate. It was simply not open to him to arrive at his own set of facts or to act as an appellate body. In so doing he fell into error.

  Hugh Wildman v The Judicial and Legal Services Commission Grenada Civil Appeal No. 9 of 2006 (delivered 1st March 2007, unreported) applied; Attorney General v Kenny D Anthony SLUHCVAP2009/031 (delivered 14th June 2010, unreported) applied; Dufour and Others v Helenair Corporation Ltd and Others (1996) 52 WIR 188 applied.

• 2. Seizure in the traditional sense refers to the act of physically taking possession of property and removing it from the owner's control and that property is usually held by the authorities pending legal proceedings. However, authorities may also effect seizure by asserting control over property without physically removing it from the owner's possession. The affidavit evidence of WPC Jules was that she made a formal seizure of the cash. The learned magistrate was clearly satisfied upon hearing WPC Jules and reading her affidavit, that she had satisfied the necessary conditions of seizure to warrant the grant of a continued detention order. The cash was in the possession of the RSLPF and they were well aware of the seizure. The respondents were also made aware of the seizure in due course. It was therefore open to the learned magistrate to find that WPC Jules did in fact seize the cash on 24 ^th April 2019.

  Cory & Sons v Burr [1881–85] All ER Rep 414 considered; United States v Jacobsen 466 U.S. 109 (1984) considered; Levar Devere Browne v Chief of Police SKBMCRAP2021/0003 (delivered 5th July 2023, unreported) applied.

• 3. Section 29A of the POCA permits financial investigators of the FIA to seize and detain cash. The powers which WPC Jules sought to exercise fell entirely within the scope of the POCA. It was not open to the learned judge to ignore the explicit power given to the financial investigators of the FIA by section 29A in the absence of any challenge to the validity or legality of the section. The learned judge accordingly committed an error of law by disregarding the explicit provisions of the POCA and relying on the provisions of the MLPA to ascertain the extent of the powers of the FIA. Additionally, section 29A gives authority to seize and detain cash to both police officers of the rank of corporal or above, or a financial investigator of the FIA thus bestowing the power on two distinct categories of persons. Although WPC Jules is a police officer, at the time of the seizure she was serving in her capacity as an investigator of the FIA and acting on behalf of its Director as evidenced in her affidavit.

  Section 29A of the Proceeds of Crime Act Cap. 3.04 of the Revised Laws of Saint Lucia applied.

• 4. Section 29A of the POCA requires that the investigating officer or police officer seizing cash have a reasonable ground for suspecting that it directly or indirectly represents any person's proceeds of criminal conduct or is intended by any person for use in criminal conduct. The POCA does not include any requirement that the reasonable grounds or reasonable suspicions be that of the seizing officer only. Based on the circumstances in which the cash was found, and the additional evidence of the original officers, there was enough evidence for WPC Jules to form her own reasonable suspicion that the cash formed the proceeds of criminal conduct and the learned judge erred in substituting his assessment for that of the magistrate and in finding otherwise. Having concluded that WPC Jules did in fact seize the cash on 24 ^th April 2019 and that she had the authority to so seize, the learned magistrate, in granting the continued detention order on 26 ^th April 2023, being the first occasion of seizure under the POCA, was not acting ultra vires the POCA in that she granted the detention order within 72 hours of the seizure of the cash, as is required by section 29A. She made no error of law and her...