Court: Detention of Tobago woodworker's $85k was unlawful

A magistrate’s decision to order the detention of over $85,000 seized by police from a Tobago woodworker has been quashed by the High Court.

The police must return the $85,927 to Marshell London, of Store Bay Local Road, and pay his costs.

In a ruling on January 23, Justice Carol Gobin declared that Magistrate Indiar Misir-Gosine’s decision to authorise the further detention of $85,027 until January 16, 2025, was unlawful.

Gobin said the decision, under Section 38 of the Proceeds of Crime Act (POCA), was both unreasonable and unsupported by sufficient evidence.

In her ruling, Gobin criticised the magistrate’s reasoning for allowing the three-month extension, saying the police’s evidence “did not inspire confidence.” The money was seized after it was found in the possession of two men seated in a car parked on the side of the road at Mt Pleasant in October 2023. The police sought three detention orders under the Proceeds of Crime Act which were granted.

The police alleged the money was being used for drug trafficking since there was a known drug block in the Mt Pleasant area.

She also said the magistrate failed to critically examine the police’s evidence or explain what weight she attached to it.

“Nothing the police said justified an extension.”

She added, “There is a difference between reasonable grounds for belief and reasonable grounds for suspicion.” She said the magistrate appeared to conflate the two standards, leading to an erroneous decision.

In her ruling, Gobin said POCA, while permitting the temporary deprivation of property, required a stringent application of the law to safeguard constitutional rights.

She pointed to Misir-Gosine’s dissatisfaction with the quality of the evidence, coupled with her apparent resignation to the “last-minute” nature of such applications.

“Indeed her comment that she ‘did not like’ the evidence of the officer suggests that she could not have been satisfied with it.

“In the circumstances, her subsequent order was inconsistent with the concerns expressed and rendered the decision irrational.”

Noting that the POCA was “draconian in effect,” Gobin said the mandatory requirement to return every three months was not intended to be a “rubber-stamping exercise.”

“The notion that officers have two years to detain and then decide on the release or forfeiture has to be dispelled.”

She said magistrates are required, on every application, to revisit the original grounds for reasonable belief against fresh evidence.

She said the police must demonstrate proactive progress in their investigations during the period of detention, and delays must be justified and cannot simply be tolerated.

“Inertia should not be tolerated,” she said, adding, “It is important that in approaching these applications the police are not lulled into the belief that they have up to two years to complete their inquiries and to determine whether forfeiture will be sought at the end.

“That is not what Parliament intended.”

Gobin also said magistrates must weigh the constitutional rights of citizens to property against the need for law enforcement to conduct investigations. Any further detention must be justified and supported by sufficient, she said.

“POCA is draconian in effect. It permits the deprivation of property in specified circumstances. Any interpretation of the permissible circumstances must be stringent and must lean in favour of non-interference with the constitutional right of citizens to property. The act does not permit seizure and detention on a reasonable suspicion.”

London was represented by Keron Ramkhalawan. Senior Counsel Rajiv Persad, Gayatri Dass and Simon Branellec represented the magistrate.