The mandate of the FIU is to take profit out of crime

14.SEP.07

Editor: I write in response to The News Editorial of last week on ‘Where’s justice?’ and also to another article carried in the said newspaper entitled ‘Bajan reprimanded for cocaine, other charges withdrawn’.{{more}}

The essential facts as contained in both articles are accurate: A Barbadian national, upon entering E.T. Joshua airport was searched and found with three rocks of cocaine and also BDS$10,542 and USD$305 in cash which he had failed to declare to our Customs authorities. Three charges were laid against him, namely, possession of cocaine, importation of cocaine and false declaration to the Customs authorities. He pleaded guilty to one of those charges: the possession of cocaine charge, and the other two charges were withdrawn. The Barbadian, Cori Branch, received a sentence of being reprimanded and discharged on the charge to which he pleaded guilty, and the monies found on him were forfeited.

I agree with the Editor and the writer of the second article that the end result, specifically the sentencing in this matter, is a travesty of justice.

There are certain matters however as Counsel appearing in this matter, which I would like to address.

It is not uncommon in St. Vincent and the Grenadines nor in other countries around the world for a man facing more than one criminal charge, to plead guilty to one charge and have the rest of his charges withdrawn against him. Further, it is also not uncommon for the prosecution to proceed against one person only, when several persons are charged with a criminal offence or offences, when that one person accepts liability. This is accepted criminal practice determined however by the particular facts and circumstances of each case. There are always certain factors to consider when bringing or withdrawing charges: the evidential sufficiency, the strength of the case, the nature of the charges, whether the penalties are appropriate punishment and whether the public has an interest in the prosecution.

In this case there were three charges laid against Branch, as stated above. The customs offence is viewed as the lesser offence and the cocaine charges are the greater or more substantive offences. The maximum penalty for the possession of cocaine on conviction at the Magistrate’s Court is three years imprisonment and a fine of $100,000. The penalty for importation of cocaine is the same as that of the possession offence and the maximum penalty for the customs offence is a fine of $5,000 or forfeiture of the goods in question. These are all substantial penalties.

In proceeding with a charge of unlawful possession of cocaine (which in itself carries a substantial penalty) where an Accused person indicates that a plea of guilty will be given, one expects that notwithstanding that a certain reduction in sentence would be given for his guilty plea, the Accused would still receive a sentence commensurate with the seriousness of the offence and its penalty, bearing in mind sentencing guidelines and precedent sentences for the particular offence. Sentencing however is never a matter for any party except the Court. It is likewise the exclusive jurisdiction of the Court to decide whether a plea of guilty is equivocal or not.

The FIU in this case, worked with the Customs Department to bring this matter to the Court. The substitution of one cocaine charge instead of two is not uncommon in the circumstances of these particular charges, neither is the substitution of the greater charge for the lesser charge. It was then left for the court to deal with the sentencing in an appropriate manner. It must be noted that the forfeiture of cash in certain cases and importantly, in this particular case, can happen with or without criminal charges being laid – thus the forfeiture of the cash could have taken place at the Customs Department via an administrative procedure or via civil proceedings for forfeiture under the Proceeds of Crime and Money Laundering (Prevention) Act 2001. The point of this is, if the authorities were interested in ‘the money only’, criminal charges would not have been laid in the first place. Based on the facts of this matter, the authorities very correctly decided to bring criminal charges. It bears repeating that forfeiture of cash proceedings could have and would have occurred in any event, with or without criminal charges.

It would be disingenuous for the FIU and the Customs Department to ‘fight over’ who gets the money. When cash is forfeited via a court order, neither the FIU nor the Customs Department gets any money. Forfeited cash goes into a fund especially established for this purpose called the Confiscated Assets Fund and the use of this fund is statutorily outlined under the said Proceeds of Crime and Money Laundering (Prevention) Act. Authorization for the actual use of this Fund must be obtained from the Minister of Finance. The FIU and other Governmental agencies including the Narcotics Unit and the Customs Department have worked together to forfeit monies when criminal charges could not be sustained. Therefore there is in fact a great understanding of matters which MUST be taken to court once criminal offences are revealed, and matters which can proceed civilly or administratively only. The overall preference is for matters to be prosecuted and this is what the FIU has always advocated.

The mandate of the FIU is to take the profit out of crime. This is a mandate which is sanctioned by law. The rationale behind this mandate is a historical one – traditionally drug traffickers and money launderers have been given jail terms, even severe jail terms, which they serve and then when they are released from custody, their criminal activities or enterprises continue unbroken or unaffected. It has thus been recognized by criminal strategists around the world in the 21st century that an effective way to dismantle criminal enterprises is to hit the criminal where it hurts most, that is, in their pockets. Cases have shown that when a man is given a jail term for drug trafficking or any other major fraudulent crime, he serves that jail term unflinchingly ‘like a man’. Yet, when his motor vehicle is forfeited, bank accounts frozen, monies forfeited or property confiscated, he ‘cries like a baby’. This is because the blood flow to his criminal enterprise becomes disrupted and the criminal enterprise is ultimately affected.

That being said, this is not to infer that the FIU is not mindful of bringing criminals to justice – and as part of that justice, having appropriate sentences, including sentences of imprisonment imposed upon them. Since the FIU has been in existence there have been several cases where offenders have been prosecuted instead of administrative penalties only being imposed against them.

It is also a truism that since its inception, the FIU has actively and persistently recommended that criminal charges be laid in appropriate cases, instead of the more expedient way of dealing with matters administratively.

The main function of our FIU is to receive suspicious activity information, analyze this information and disseminate it to the relevant authorities locally and around the world. SVG’s FIU, however, is a hybrid or mixed model FIU, which also carries out investigations into the suspicious activity information which it receives. It has further evolved into having a prosecutorial function, where it prosecutes cases which it investigates or assists in the prosecution of other cases in which it has an interest, under the authorization of the Director of Public Prosecutions. These hybrid functions have worked well within the context of a small jurisdiction like SVG.

‘Taking the profit out of crime’ is viewed by the FIU as a necessary means to an end. However, the FIU has never taken its focus away from its overriding objective of assisting in dealing with the problems of money laundering and major crimes, and bringing to justice those involved in these nefarious activities

I, therefore, have no quarrel with the editor of The News newspaper, nor with its portrayal of this case. On the contrary, I applaud the author(s) for being socially conscious of issues which affect us all. Whether one is Barbadian or Vincentian, there is public interest in a man being brought to justice for drug trafficking. Had I or the FIU been contacted for comment prior to the publication of the respective articles, we certainly would have shared our view that we disagreed with the sentence in this case, in view of the nature and seriousness of the offence and precedent sentences. This is because we align ourselves with the maxim that justice must not only be done but must be seen to be done. Like Sgt Butcher, I have never been aware of a sentence of reprimand and discharge in a like situation.

Grenville T. Williams
AML Legal Officer
Financial Intelligence Unit