Hylton

The Editor, Sir:

The proceeds of the Crime Bill has been one of the most carefully considered and debated pieces of legislation in recent years.

It was referred to the joint select committee of Parliament which began deliberations on the bill on November 23, 2005, and which submitted a report to Parliament on December 12, 2006, after having held nine meetings.

The committee received written submissions from various interest groups, including the Jamaica Bankers' Association and the Norman Manley Law School. Many concerns were raised and fully discussed, including those referred to by Senator Dorothy Lightbourne and those in your editorial.

Concerns

After careful consideration of these submissions and concerns (and no doubt of their own concerns), the members of the committee agreed to make a number of amendments to the bill. These amendments sought to improve the bill in various ways, and many were for the express purpose of better protecting the rights of persons whose property might be subject to forfeiture. In my view, all the concerns raised were appropriately addressed by the committee.

Your editorial of February 28 claims that the bill, "if not unconstitutional, overturns fundamental principals of rights and freedoms". Those concerns were raised and fully explored long before the bill was even drafted.

In 2002, the Office of the Director of Legal Reform and the Attorneys-General's Chambers carried out extensive research in relation to similar legislation elsewhere in the world. We took the same approach that you have apparently taken: We were not satisfied only by the fact that similar legislative provisions existed in the United Kingdom and had been upheld by their highest courts, but we considered whether, as a matter of principle, the proposed legislation would be consistent with the spirit of our Constitution and laws. We concluded that both on principle and on authority, the contemplated legislation should be enacted.

The editorial's conclusion that "fundamental principles" are being overturned is based on the provisions in the bill which allow the court to order the forfeiture of property deemed to have been obtained by unlawful conduct in the absence of anyone being convicted of a crime.

These provisions also allow the courtsto do so based on a balance of probabilities and without requiring proof beyond a reasonable doubt.

It should be kept in mind that for good reason, the law has long required different standards of proof in criminal cases and for civil proceedings. A criminal conviction can result in the loss of one's liberty and indeed, one's life, and various other disqualifications and disadvantages can result.

The court starts with a presumption that a person charged with a criminal offence is innocent, and will not find him guilty if there is any reasonable doubt as to his guilt.

In civil cases, however, what is usually at risk is one's property, and there is no similar presumption nor is there a requirement for proof beyond a reasonable doubt. Persons therefore routinely lose property to other litigants, and indeed, to the State, as a result of a finding on a balance of probabilities and without anyone being convicted of an offence.

There is other long-standing legislation which allows the forfeiture of goods in certain circumstances without anyone being convicted of a crime. The Customs Act, for example, has allowed such forfeitures for more than 60 years.

In any event, what "fundamental principle" is at stake here, and what is so objectionable about this provision? Consider the following very real example:

'B', a reputed gang leader and drug don is killed. There is evidence that in addition to dealing in drugs, he was involved in extortion and other criminal activities. His estate is worth hundreds of millions of dollars, and includes houses, motor vehicles and bank accounts.

There is no evidence of B having been involved in any legitimate activity which could have yielded sufficient income to acquire those assets. 'B' cannot be charged or convicted of any of these offences because he is dead.

If in these circumstances, a court is satisfied on a balance of probabilities that the assets were obtained as a result of unlawful conduct, why should they not be forfeited? Why should his beneficiaries (whether they be his cronies or innocent family members) obtain and keep this property? And if before his death B transferred some of the assets to his girlfriend or his family members, why should they be allowed to keep them?

It must also be noted that genuine third-party rights are protected, and so the property will not be subject to forfeiture from someone who has acquired it in good faith, for valuable consideration and without notice that it was obtained from unlawful activity.

The bill will not allow decisions to forfeit to be made on the basis of hearsay evidence as the editorial suggests. The usual rules of evidence will apply. Hearsay evidence will only be admissible on a application for a restraint order, which would be the equivalent of an ex-parte interim injunction. Such evidence is already admissible on applications for interim injunctions.

Your editorial is correct in asserting that Caribbean civilisation should establish its own standards and should be bound by principle. We should be careful, however, to separate principle from rhetoric. The Proceeds of the Crime Bill will represent a significant and far-reaching step, but it has been carefully thought out, fully debated, and should be welcomed.

I am, etc.,

B. ST. MICHAEL HYLTON

Solicitor General