Ever since the warrant of arrest was issued for alleged drug lord Christopher ‘Dudus’ Coke, there has been debate about whether there is any legal basis for the Government to make a move on his assets.
The Proceeds of Crime Act makes provision for the court to freeze the assets of a person who obtains wealth by illicit means, even if that person has not been charged or convicted.
A lawyer who requested anonymity because of the sensitivity of the matter said freezing assets was the ultimate goal of taking the profit out of crime.
Attorneys with whom The Gleaner spoke emphasised that unless a person is charged with a criminal offence in Jamaica, steps could not be taken to freeze his assets. The lawyers said that if a person is extradited to the United States and is convicted there, the Jamaican Government could only take steps to confiscate his assets if the United States makes such a request.
A lawyer explained that in criminal cases, an application can be made to the court to have assets frozen after a person is charged with a criminal offence. If the person is convicted, an application can be made to the court for the assets to be forfeited. The application is usually made for the assets to be frozen after the person is arrested and charged in order to prevent the person from disposing of the assets before the case ends. Once the person is freed, the assets cannot be confiscated.
Civil component
But the lawyer was quick to point out that the Proceeds of Crime Act, which came into effect in May 2007, has a civil component. A person’s assets can be frozen even if he or she is not charged with a criminal offence.
The lawyer said in such cases, once the Financial Investigations Division gets information and starts a preliminary investigation into an accused’s assets, steps could be taken to have his assets frozen.
“Once you can show to the court that a property was not legitimately obtained, then based on certain assumptions which the law entitles the court to draw, the Government can move against a property where you don’t have a person charged with any offence.”
The lawyer said the objective of the civil assets forfeiture is to take away properties, as well as money in bank accounts
, which are obtained by illicit means. The onus is on the person to prove he or she legitimately acquired the property.
“If you cannot prove by legitimate acquisition of the property, then the assumption is that it has been illegitimately obtained,” the lawyer said.
The lawyer emphasised that the legislation has really been underutilised.
However, if a study examining the money-laundering activities of Mexico’s drug lords is to be believed, Jamaican narco-kingpins may be following the trend of dealing almost exclusively in cash in order to remain below the radar of the authorities who might be combing through bank and other records.
“Drug moguls can buy real estate, cars, airline tickets and just about everything else in cash, allowing their powerful businesses to easily launder the estimated US$19 billion-US$29 billion they earn each year selling cocaine, heroin, methamphetamine and marijuana in the US,” The Associated Press reported on Wednesday.
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