Re Application for Customer Information Order Pursuant to Section 119 of Proceeds of Crime Act 2007

• Jurisdiction: Jamaica
• Judge: BROOKS J
• Judgment Date: 12 October 2011
• Judgment citation (vLex): [2011] 10 JJC 1201
• Court: Supreme Court (Jamaica)
• Date: 12 October 2011
• Docket Number: CLAIM NO. 2011 HCV 01577

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2011 HCV 01577

IN CHAMBERS

IN THE MATTER OF AN APPLICATION FOR A CUSTOMER INFORMATION ORDER PURSUANT TO SECTION 119 OF THE PROCEEDS OF CRIME ACT 2007

Ms Charmaine Newsome for the Applicant.

Proceeds of Crime – Customer Information Order - Pre-requisites for – Proceeds of Crime Act ss. 5, 55, 84, 91-93, 103, and 119-125

BROOKS J

1 The Assets Recovery Agency was established by the Proceeds of Crime Act (the Act) in 2007. The Agency is empowered by the Act to perform a number of functions with respect to the investigation and prosecution of certain types of offences. These offences mainly involve money laundering and the proceeds of crime and, what the Act describes as, ‘criminal lifestyle’.

2 Among the things which the Agency is permitted by the Act to do, is to apply to the court for permission to request information from financial institutions. The information would concern the accounts of clients of the particular institutions. Normally, such information is required, by statute, to be treated as strictly confidential and it is only in certain circumstances that it may be disclosed. Where an application, as is referred to above, is successful, the order granted is termed a Customer Information Order (CIO).

3 There are certain pre-requisites which the Agency must satisfy before the court will make a CIO. The issue to be decided is whether the Agency has met those requirements. In this judgment I shall set out a summary of the application, outline the relevant law and thereafter apply the law to the instant case.

The background to the application

4 In its application, the Agency has identified one main individual whom, it says, has been charged with a number of offences. In order to maintain confidentiality, it is neither necessary nor appropriate to identify the individual or the offences. It is to avoid alerting the suspected individual that applications, such as the instant one, are made without notice to either that individual or the institutions involved. I shall henceforth refer to the individual herein, as X.

5 The Agency outlined, in the affidavit filed in support of the application, several allegations against X. It set out the methods by which, it asserts, X committed the offences in question, and for these purposes, outlined the use which, it says, X made of certain financial institutions, in manipulating the financial proceeds of the alleged illegal activity.

6 Items of property were also identified by the Agency as suspected of being derived from X's alleged criminal activity. According to the Agency, X and a number of X's associates have benefitted from criminal conduct. It is to be noted, however, that neither X nor any of these associates has been convicted for any offence.

7 The Agency had originally applied for a CIO directed at a wide range of financial institutions. It secured a CIO which gave it permission to seek, from those institutions, particulars of accounts held by X, and X's associates and family members. The present application requests a CIO in respect of one specific financial institution, which was not included in the original application.

The relevant law

The relevant provisions of the Act

8 Applications for CIO's are authorised by section 119 of the Act. One of the pre-requisites for making a CIO is that the application must be made by an appropriate officer. This requirement, which is established by section 119 (1), is explained in paragraph II.018 of Mitchell Taylor and Talbot On Confiscation and the Proceeds of Crime 3 ^rd Ed.:

‘As this order is extremely intrusive the Act gives added protection to ensure that such orders are only applied for in appropriate cases. An appropriate officer can therefore only make the application, if he is a senior appropriate officer or is so authorised by one.’

9 Section 119 (2) requires the application to state that it is sought for the purposes of a forfeiture investigation, a money laundering investigation or a civil recovery investigation. A CIO is, according to 119 (4), ‘an order that a financial institution…shall…provide any such information as it has relating to [a specified] person’. No order for a CIO will be made unless the applicant satisfies the court concerning certain requirements contained in section 121 of the Act.

10 Section 121 bears being set out in full:

‘The requirements for the making of a customer information order are that-

• (a) In the case of a forfeiture investigation, there are reasonable grounds for believing that the person specified in the application for the order has benefited from his criminal conduct ;

• (b) In the case of a civil recovery investigation, there are reasonable grounds for believing that–

  • (i) the property specified in the application for the order is recoverable property or associated property ; and

  • (ii) the person specified in the application holds all or some of the property;

• (c) In the case of a money laundering investigation, there are reasonable grounds for believing that the person specified in the application for the order has committed a money laundering offence ;

• (d) In the case of any investigation, there are reasonable grounds for believing that customer information which may be provided in compliance with the order is likely to be of substantial value, whether or not by itself, to the investigation for the purposes of which the order is sought; and

• (e) In the case of any investigation, there are reasonable grounds for believing that it is in the public interest for the customer information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.’ (Emphasis mine)

The provisions of this section require reference to section 103 of the Act. Section 103 provides definitions for some of the terms used in the part of the Act in which section 121 falls. Of particular reference are the respective definitions of ‘civil recovery investigation’, ‘forfeiture investigation’ and ‘money laundering investigation’.

11 Section 103 defines a ‘civil recovery investigation’ as an investigation into the Act and the particulars of the holding and whereabouts of that property. Both types of property are defined in section 55 of the Act, but section 84 makes it clear that ‘recoverable property’ is property obtained through unlawful conduct.

12 A ‘forfeiture investigation’ is defined as an investigation into ‘whether a person has benefitted from his criminal conduct’ or into the extent of that benefit. A ‘money laundering investigation’ means an investigation into ‘whether a person has committed a money laundering offence’. For these purposes, a money laundering offence, simply put, involves knowingly acquiring, possessing or dealing with criminal...