Senior Reporter
derek.achong@guardian.co.tt
A carpenter has won his legal challenge over a magistrate’s decision to allow the police to continue to “detain” almost $86,000 in cash seized from him in 2023.
Delivering a judgment on Thursday, High Court Judge Carol Gobin ruled that the magistrate was wrong to have granted the application under the Proceeds of Crime Act (POCA) for the continued detention of the cash seized from Marshell London, of Store Bay Local Road, Tobago.
Justice Gobin quashed the extension and also gave useful judicial guidance on how the legislation should be properly applied. According to the evidence, around 8 pm on October 16, 2023, officers of the Inter-Agency Task Force (IATF) were on patrol when they noticed London’s car parked along Roach Trace, Mount Pleasant, Tobago.
The officers claimed that they saw London place a pouch under his seat upon noticing their presence. They did not find anything illegal when they searched the vehicle but found $85,927 in the pouch. London denied any wrongdoing as he claimed he collected the money from three clients for projects he was working on. However, the police informed him the cash would be seized as he was found in possession of more than the prescribed sum of $20,000 at a “known drug block”.
PC Dick of the Financial Investigations Branch (FIB) was assigned to investigate the legitimacy of the source of the funds and the intended use of the seized cash. Several days later, acting Chief Magistrate Christine Charles granted an ex-parte application permitting a further three months of detention.
Several similar applications were subsequently made and granted with the most recent being approved by Senior Magistrate Indira Misir-Gosine on October 17, last year. London, through his lawyer Keron Ramkhalwhan, of JurisX Chambers, filed a judicial review lawsuit challenging the legality of the decision to grant the most recent extension, which was due to expire last Thursday. Justice Gobin ruled that she had the jurisdiction to review the magistrate’s decision because London did not have the right to appeal as the detention order did not constitute a criminal conviction. She then considered the application of Section 38 of the POCA, under which the detention was made and extended.
The legislation empowers police and customs officers to seize cash in excess of the prescribed sum if they have reason to believe that the cash directly or indirectly represents the proceeds of a specified criminal offence.
Officers must seek an extension from a magistrate if they seek to hold the cash for more than 96 hours. It can be kept up to two years. Justice Gobin drew a distinction between the reasonable grounds for belief required for officers and reasonable grounds for suspicion for magistrates.
“The difference and the importance of maintaining the distinction assume greater significance where the statutorily mandated state of mind of officers can ultimately justify an interference with the constitutional rights of citizens,” she said. She noted that the magistrate referred to both tests in her decision.
“It is not entirely clear how she approached the test and that in itself rendered her decision erroneous in law,” Justice Gobin said.
Justice Gobin noted that the decision was unreasonable and unsupportable on the evidence as she reviewed the evidence given by the investigator when seeking the extension.
“His answer more than 12 months later that he could not say that it was a drug block ought properly to have raised a serious question about the reasonableness of the original belief of the police and more importantly the justification for a further detention.”
Providing general guidance, Justice Gobin pointed out that the three-month extensions were intended to allow judicial officers to monitor and ensure that there are developments and progress with investigations.
In addition to essentially ordering the release of the cash to London, Justice Gobin ordered that the State pay his legal costs for the lawsuit.
The magistrate was represented by Rajiv Persad, SC, Gayatri Dass and Simon Branellec.
