The Office of National Drug and Money Laundering Control Policy (ONDCP) has successfully defended a constitutional motion before the High Court.

High Court Justice Clare Henry, in a recent Decision in the case of The Supervisory Authority v. Ahmed Williams has ruled that the provisions for civil forfeiture under the Money Laundering (Prevention) Act do not contravene the Constitution. Defendant Ahmed Williams had argued that section 20A of the MLPA which provides for forfeiture of frozen property where a defendant had committed a money laundering offence within 6 years prior to the application, violated section 3 of the Constitution protecting the right to “the enjoyment of property” and “the  protection of the law” and “from deprivation of property without fair compensation” and was draconian and unconstitutional.

To the challenge that sections 2H and 20A of the MLPA provide the sanction of civil forfeiture whether or not the person have been convicted of a criminal offence, the Court expressed the view that generally, no criminal sanction can be meted out in the absence of a conviction for a criminal offence. However, there is no rule that there can be no civil sanction without a conviction for a criminal offence. Therefore there is no need for civil forfeiture to be dependent on a criminal conviction. The Judge said that while a civil forfeiture order is not dependent on a criminal conviction, the Supervisory Authority must present evidence of sufficient particularity for the court to find on the balance of  probability that the defendant engaged in money laundering activity. This is so whether the defendant has been charged with a money laundering offence or has been tried or has been tried and acquitted.

To the challenge that the civil forfeiture provisions are draconian, Justice Henry cited Chief Justice Hugh Rawlins where he stated: “It is a truth universally acknowledged that without the financial rewards on offer then precious few, if any, people would be motivated to ship drugs across continents; to launder the proceeds of crime; to defraud and steal from the vulnerable, the innocent or the gullible…. The most effective weapon against such crime…is prevention; the removal of the incentive to commit the crime in the first place. After all, if the putative criminal assesses that he will reap no benefit from his crime there would be no incentive to commit it.”

Director Edward Croft wishes to openly thank Justin Simon QC, Annette Mark and Curtis Bird for their hard work and successful prosecution in this historic case.

Ahmed Williams was convicted of possession with intent to supply and possession with intent to sell after he was interrupted while engaged in a drug transaction by ONDCP and Police officers who found him in possession of 3.3 kilos of cocaine, US$16,446 and EC$41,965 together with a pistol and ammunition. After the criminal case, two parcels of land owned by Williams were frozen by the Supervisory Authority. Williams applied to unfreeze the properties, but was unable to satisfy the court that the properties were not used in connection with any unlawful activity and were not derived directly or indirectly by any person from any unlawful activity or related in any way to unlawful activity. As a result the properties were forfeited to the Government.

This case has created history and a legal precedent in the region. This decision reinforces the principle that the provisions for civil forfeiture do not contravene the Constitution. This will be similar for other jurisdictions within the OECS and the Caribbean. Congratulations were also received from the Programme Manager from the Caribbean Criminal Assets Recovery Programme| British High Commission in Bridgetown, which stated “An excellent result and some very valuable case precedent for the region. A long time in the making, which makes it much more sweeter.” Congratulations was also received from the Financial Crimes Advisor of the International Narcotics and Law Enforcement Affairs Section in Washington, DC.