Jersey Unreported Judgments

[2008]JRC212

royal court

(Samedi Division)

10^th December 2008

Before     :

Sir Philip Bailhache, Kt., Bailiff, and Jurats Tibbo and King.

IN THE MATTER OF THE REPRESENTATION OF THE VISCOUNT IN THE ROYAL COURT OF THE ISLAND OF JERSEY

AND IN THE MATTER OF A SAISIE JUDICAIRE IN RESPECT OF THE REALISABLE PROPERTY OF PETER WILSON MICHEL

AND IN THE MATTER OF THE PROCEEDS OF CRIME (JERSEY) LAW 1999, AS AMENDED.

Advocate D. F. Le Quesne for Michel.

Advocate B. H. Lacey for the Viscount.

Crown Advocate S. M. Baker for the Attorney General.

judgment

the bailiff:

1.        This is a Representation by the Viscount seeking certain directions arising from the making of orders by Commissioner Nice following the conviction of the defendant Peter Michel on counts of money laundering.  Many of the issues arising from the Viscount's Representation have been agreed between the parties but two are outstanding. 

2.        The first issue upon which we are required to adjudicate concerns the question whether the defendant has complied with the confiscation order that was made by the Court in October 2007.  The issue is important in the context of the defendant's treatment at the prison.  The defendant was sentenced to 6 years' imprisonment and a confiscation order was made on 19^th October, 2007 with provision for the defendant to serve an additional 3 years' imprisonment if the confiscation order was not met.

3.        Mr Le Quesne for the defendant has invited us to find that the defendant has complied with the confiscation order on the basis that he gave instructions through his legal adviser on the 15^th October, 2008 which should have enabled the Viscount to use money subject to a saisie judiciare to satisfy the confiscation order.  Mr Baker for the Crown has submitted that it would not be right to make any such declaration because the fact of the matter is that the confiscation order has not yet been satisfied. 

4.        We accept the submissions of the Crown Advocate and we do not think that it is possible for us to declare that there has been compliance with the confiscation order.  We regard that as a simple statement of fact.  It is unnecessary for us to recount the different submissions in and about the exchanges which have taken place between the Viscount and the defendant because we accept that it is possible for the confiscation order to be satisfied and we expect that the confiscation order will be satisfied in short order.  The fact that it has not been satisfied before the expiry of the twelve month period is not a matter which can be laid wholly at the door of the defendant.  We will therefore direct the prison authorities to treat the defendant as a prisoner serving a 6 year prison sentence and that direction will endure until 7^th January, 2009 or the earlier satisfaction of the confiscation order.

5.        The second issue upon which we are required to adjudicate relates to the interpretation of Article 20 of the Proceeds of Crime (Jersey) Law 1999.  That paragraph provides:-

"(1) The following sums in the hands of the Viscount, that is to say -

 (a) money that has vested in the Viscount or come into the Viscount's possession pursuant to Article 16; and

 (b) the proceeds of the realisation of any property under Article 17,

shall, after such payments (if any) as the Court may direct have been made out of those sums and then after payment of the Viscount's fees and expenses, be applied on the defendant's behalf towards the satisfaction of the confiscation order"

6.        The meaning of that statutory provision seems to us to be crystal clear.  The statute envisages that out of the proceeds of realisation the Viscount shall:-

(i)        make any payments that the court has expressly directed should be made;

(ii)       pay his fees and expenses;

(iii)      apply any balance towards the satisfaction of the confiscation order.

7.        What we have been told is that during the costs hearing Commissioner Nice asked the Viscount's Officer to attend and was told, apparently, that the Viscount's invariable practice was to take his costs out of the confiscated assets and not out of the seized assets prior to confiscation.  We are told that the Crown Advocate did not demur or intervene in relation to this information furnished to the Court by the Viscount's Officer.  Without a transcript it is not possible to be certain exactly what the Commissioner was told or indeed what he asked.  It may be that there was a misunderstanding between the Viscount's Officer and the learned Commissioner.  What is however tolerably clear is what the Commissioner intended to do in relation to the fees and expenses of the Viscount.  He intended that those fees and expenses should be deducted from the monies which were the subject of the confiscation order.  What he actually said is set out at paragraph 44 of his Judgment:-

"The Viscount's costs, whatever the law may say technically, will be taken from the confiscated money so that they will not be an additional burden on the seized assets.  Put another way, subject to any order for costs, the defendant will recover from seized assets everything except that which ultimately goes in confiscation and a costs order"

By "costs order" the learned Commissioner meant the prosecution costs with which he had dealt separately.

8.        It may well be that the learned Commissioner was not specifically directed to Article 20 of the Proceeds of Crime (Jersey) Law 1999; it does not seem to us that his order complied with the terms of the statute..  Be all that as it may, it is clear that the Commissioner ordered that the Viscount's fees and expenses should be deducted from the sum to be confiscated.  It was an order of a court of coordinate jurisdiction and we have no power to interfere with it.

9.        We will therefore give the following directions pursuant to Article 17.  (1) The Viscount is empowered to realise from property vested in him pursuant to the saisie judiciaire sufficient cash; (a) to pay the costs order of £1,665,598 imposed by Commissioner Nice QC; and (b) to pay the confiscation order of £9,730,152 imposed upon Michel by the Royal Court on 19^th October, 2007; (2) the property to be realised pursuant to paragraph 1(a) above, is that property vested in the Viscount pursuant to the saisie judiciare which Mr Michel has nominated for the purpose of satisfying the costs order; (3) the property to be realised pursuant to paragraph 1(c) above is that property vested in the Viscount pursuant to the saisie judiciaire which Mr Michel has nominated for the purpose of satisfying the confiscation order and; (4) pursuant to Article 20 of the Proceeds of Crime (Jersey) Law 1999 the Viscount is ordered to make the following payments within 21 days and in the order listed from the funds realised by him pursuant to paragraph 1 hereof; (i) a payment of £1,665,598 to the nominated account opened by HM Attorney General for the purpose of receiving this money in accordance with the costs order of Commissioner Nice, (ii) a payment of £9,730,152 (less the Viscount's fees and expenses) to the Criminal Offences Confiscation Fund in satisfaction of the confiscation order; (5) the time for payment of the confiscation order by Mr Michel is extended until 7^th January, 2009.

Authorities

Proceeds of Crime (Jersey) Law 1999.

AG-v-Michel [2008] JRC 027A.