an Application by ALBERT GORDON for leave to apply for
of a decision of the Inferior Court for the Belize Judicial
District on the 29th day of September, 1992, to forfeit
$30,000.00 BZ in a matter in which P.C. OMAR SEGURA
was complainant and ALBERT GORDON was Defendant.
of Section 28(2) of the Misuse of Drugs Act No. 22 of
Action No. 306 of 1992
12th July, 1993.
G. D. MEERABUX, J.
Barrow S.C. for the Applicant.
Mr. Mark Anderson associated with Mr. Dons Waite and
Mrs. R. Usher for the Crown
for judicial review - Order for forfeiture of money after
conviction for offences of possession of drugs and possession
of drugs with intent to supply - Section 28(2) Misuse of
Drugs Act No. 22 of 1990 - Nature of judicial review, established
categories - grounds of present application within established
categories - Meaning of "record" for purposes
of present proceedings - Finding that Magistrate acted ultra
vires powers conferred by Section 28(2) in that no finding
of fact was made that the money ordered forfeited related
to the offence - Breach of the rules of natural justice
- Refusal by Magistrate to allow applicant to be heard before
making forfeiture order - obvious error on face of record
- Magistrate did not hear evidence or make findings of fact,
and refused permission for the applicant to be heard - Decision
of Magistrate quashed - Matter remitted to Magistrate with
direction to reconsider forfeiture order.
E C I S I O N
13th of January, 1993, I granted leave to apply for Judicial
Review from a decision of the Inferior Court for the Belize
Judicial District on the 29th of September, 1992, to forfeit
$30,000.00 BZ as being money relating to the offences for
which the applicant had been convicted, for an order:-
the said decision made by the Inferior Court and its purported
forfeiture of the applicant's $30,000.00 BZ. be removed into
the Supreme Court of Judicature and thereupon that the said
decision and forfeiture be quashed;
the Inferior Court be compelled to return the $30,000.00 BZ
to the applicant;
the Inferior Court be prohibited from continuing to detain
the said $30,000.00 BZ, and
the Magistrate of the said Inferior Court pay damages to the
applicant for the wrongful detention of the said $30,000.00
BZ. The Motion was heard on the 13th of January, 1993, when
counsel for the applicant intimated that he was abandoning
ground 4 of the relief sought and applied to add the following
new ground (iv):-
"(iv) The decision of the Inferior Court was made without
jurisdiction and there the Learned Magistrate ordered forfeiture
without there being any evidence to establish a nexus between
the offence for which the applicant has been convicted and
the money forfeited, in the alternative, the decision was
unreasonable in the Wednesbury sense in that it was such
that no tribunal properly viewing the circumstances could
have come to the conclusion that forfeiture was required
or permitted" and
to amend particulars of the application by deleting the
figure of $30,000.00 where ever it appears and substituting
the new figure of $29,998.00.
for the Crown at first objected to the application but later
made no objections to the amendments which were granted by
for the applicant referred to the affidavit of the applicant
which he pointed out remained unchallenged in spite of service
of this affidavit on the Magistrate concerned, the Director
of Public Prosecution and the Attorney General.
that since there was no reply or answer filed challenging
the contents of the said affidavit, the court should proceed
on the basis that the applicant's version of events is accurate.
The applicants affidavit states as follows:-
ALBERT GORDON, Businessman of No. 3244 Courtenay's
Crescent, Belize City, Belize, the applicant herein, MAKE
OATH AND SAY as follows:-
or around the 18th September, 1992 I pleaded guilty in
the Inferior Court for the Belize Judicial District to
drug possession and drug trafficking offences for which
I had been jointly charged with Sharlene Roca.
case against Roca proceeded after I had entered my plea
of guilty, and I appeared as a witness for Ms. Roca's
the 29th September, 1992, the Magistrate found Roca guilty
proceeded at that time to sentence both Roca and me.
had originally been charged after the police had searched
my home and discovered dangerous drugs on my premises.
The police had at the same time found $29,998.00 BZ in
my home and had seized and detained the money.
after sentence on the 29th September, 1992, Counsel by
whom I was represented indicated to the Learned Magistrate
that she had failed to deal with the money that had been
seized from my home; that I was applying for the return
of the money; and that the prosecution had not applied
for the money to be forfeited.
prosecution thereafter straightaway made verbal application
that the $29,998.00 BZ be seized as money relating to
the offences for which I had been convicted.
Counsel then pointed out that the Magistrate would need
to judicially determine whether the said $29,998.00 BZ
was in fact related to the offences for which I had been
convicted and that in that regard I should be allowed
to give and call evidence to try and prove the contrary.
Learned Magistrate then ruled that there was no need to
hold any separate enquiry or receive evidence on the question
of the money. She held that the course of the evidence
during the trial of Ms. Roca and the testimony I had given
as Ms. Roca's defence witness were enough to enable her
to make the relevant determination under Section 28(2)
of the Misuse of Drugs Act No. 22 of 1990. The Learned
Magistrate thereupon ordered forfeiture of the $29,998.00
BZ which had been found on my premises and which I had
applied to have returned to me.
attach hereto and mark A.G.1. a minute of the Magistrate's
decision as certified by the Clerk of the Inferior Court."
for the applicant further submitted with great clarity and
the decision of the Inferior Court was ultra vires the power
conferred by S.28(2) of the Misuse of Drugs Act;
the decision of the Inferior Court was contrary to the rules
of natural juctice, and
(3) the decision was without jurisdiction;
within the established categories on which an order for Judicial
Review will issue.
Reference was made to Halsbury Laws of England 4th Ed.
1 - para 60 p.91 under caption
"Nature of Judicial Review" and
the Annual Practice 1991 Vol. 1 p.825 - 0.53 r,14
under caption "Application for Judicial Review"
to the grounds set out above, counsel for the applicant further
the decision was ultra vires the power of the court conferred
by S.28(2) of the Misuse of Drugs Act because that
section states that the court " shall forfeit"
money etc. if found relating to the offence and that the burden
rest on the prosecution to satisfy the Court that the money
is related to the offence. The records of that Ex.
A.G. 1 reveal that no evidence was led by the prosecution
in this regard, but the unchallenged affidavit of applicant
reveals that the Magistrate used evidence of co-accused as
a basis for determining innocence or guilt of accused, and
made no finding of fact that money related to drug offence.
was made to Archbold 1992 Vol. 1 42nd. Ed. para. 5 - 528
and to para. 22- 47 p. 2052 of Archbold supra under caption
"Customs Act and Controlled Drugs", where
the term "related to the offence" was emphasised,
and to para. 5 - 527 of Archbold supra where the term "shown
to the satisfaction of the court" is stressed.
that there is need for a enquiry to be held and for the applicant
to give evidence but that no enquiry was held in this case.
Ground 2 - Rules of Natural Justice requires that
evidence should be heard before making such order, and reliance
on evidence in other proceedings compounds error. Reference
made to Archbold supra. 5 - 532
Ground (iv) Refers to Ex. SA. G.1 which reveals
that no evidence was led by prosecution to show money related
to the offence. Alternatively the principle in the Wednesbury
Submits no charge of "supplying drugs to another"
to enable an order for forfeiture of money to be made.
Counsel for the Crown reply may be summarised as follows:-
money is found on premises where drugs are also found, a person
convicted of an offence under the Misuse of Drugs Act is liable
to have that money forfeited and that the court does not have
to determine whether that money is his or another person.
What is important is that the money relates to the offence.
accused were jointly charged with:
possession of dangerous drugs and
in passing sentence on both accused is entitled to make a
determination at that time as to whether the money found on
premises belonged to applicant relating to either of the offences
with which they were charged and that the forfeiture is part
of the sentence, it matters not to whom the money belonged;
question raised by the applicant's counsel is whether a 2nd
enquiry ought to be held after trial of co-accused to determine
the matter of forfeiture of the money.
There is no need for 2nd enquiry where the evidence points
to the money being related to the offences;
the applicant's affidavit does not mention that applicant
not given a chance to be heard or that he wished to call witnesses,
nor that any such application was refused.
It was argued that these opportunities only allowed if Magistrate
is entitled to make a separate enquiry which she is not entitled
of natural justice does not require the Magistrate to conduct
the case for the defence and she has a discretion to determine
finality of proceedings.
No breach of rules of natural justice occurred nor was it
ultra vires, her power to make a determination in respect
of the forfeiture of the money;
reference to ground (iv) the additional ground:-
the Magistrate had jurisdiction to make the forfeiture order
as part of sentencing under S.28(2) of the Act and since
the proceedings were regular on the face of it, the Supreme
Court should not grant the writ of certiorari on the ground
that the inferior court has misconceived the law.
v Ludlow 1 K.B. - 1947 p.634
error of Law on the record -
record in a criminal trial must include information, complaint,
evidence, reasons for decisions and not "Minute
Rex v Northumerland Compensation
Appeal Tribunal Ex parte - 1 K.B. 1952 p.338
made a forfeiture order without taking evidence this is not
an error of law on the face of the record, rather an error
of fact going to the issue of natural justice but does not
arise from the face of the record. Admits unable to find a
case dealing with the issue of forfeiture without taking evidence.
Wednesbury principle: - the court cannot interfere
and act as an appellate authority unless the decision of
a competent authority is so unreasonable that no reasonable
authority, could even have come to it.
absence of notes of evidence there is no basis for the court
so to find.
the issue of reasonableness only arises if Magistrate took
into account something which she should not take into account.
Judicial Review not concerned with merits of judgement but
decision making process itself.
Refers to Halsbury LawsVol. 1 para. 60 p.91
The Misuse of Drugs Act S. 2 (1) (m)
gives definition of proceeds of drug trafficking.
It matters not when raid took place and drugs found, and
that there was nothing transpiring as such between money
that a certified copy of Magistrate notes of evidence should
be admitted without any accompanying affidavit to establish
nexus between money forfeited and the offences, Refering
to S.8. of the Evidence Act and seeking counsel for
the applicant's agreement to have such notes admitted;
that the case of Q v Churcher not applicable to this case
in that the facts were different;
applicant does not have sufficient locus standi in that
the money belongs to a lady friend;
the Magistrate made a wrong decision but acted within her
I must comment on a matter which has caused me some anxiety
in these proceedings.
case principles of law have been submitted to the court without
any legal authority or authorities to support them. I find
this modus operandi not only insulting to legal jurisprudence
but also highly improper.
of law are submitted, legal authorities must be quoted unless
the proposing counsel is the legendary Tribonian who
compiled the Digest of Roman Law, dealing with many aspects
of Roman Jurisprudence.
are no legal authorities or persuasive argument to support
these proposed legal principles the question that arises is
this - how can you honestly make such legal submissions-
when legal authorities have been advanced supporting a contrary
view to that legal principle proposed which has no legal authority,
that legal authority should not be ignored but rather should
be dealt with face on and either admitted as against the proposed
principle or distinguished. The practice of law is not a game
but a very serious business challenging the integrity, honesty,
skill and scholarship of persons who are engaged in its practice,.
The ultimate aim of trials in our Courts of Law is the quest
for truth - the search for truth. Lawyers who are engaged
in this search for truth have an obligation as officers of
the court to be honest and candid with the court. I am reminded
of the legal maxim "Fiat justicia ruat coelum" -
let justice be done though the heavens should fall.
Counsel for the applicant replied as follows:-
In dealing with Magistrate's Notes of evidence - In proceedings
for Judicial Review - reliance has to be placed on U.K.
Supreme Court Rules 0.53. as local rules make no provisions
is normally by affidavit with exceptions but is prepared in
the interest of justice to consent the admission of the said
notes in accordance with s.8(2) (1) (a) of the Evidence Act.
Definition of "proceeds of drug trafficking" has
nothing to do with money found to be related to offence
and no attempt made to deal with the wealth of authorities
in Archbold supra para. 5 - 527 and to ignore learning is
Emphasised that mere presence of money where drugs
found not enough - money must relate to offence for which
he was convicted. This is the essence of the Wednesbury
Principle. No evidence to support confiscation order
and no reasonable tribunal appreciating requirements and
acting reasonably could have come to that conclusion.
Halsbury Vol. 1 supra paras. 77 and 142
There was no evidence to show money related to the offence.
on the face of the Record
Record constitutes Minute exhibited. What constitutes record
not authoritatively defined.
Halsbury Vol. 1 supra para. 84
Minute makes no notes of enquiry, no findings of fact no nexus
- error patently on the Record.
of Rules of Natural Justice
When applicant pleads guilty, calling of witness irrelevant
but calling of witness becomes relevant in dealing with application
for forfeiture. Applicant proceeded correctly, and application
to call witness refused - applicants affidavit unchallenged
and amounted to a naked breach of the rules.
need to hold separate enquiry as to forfeiture. Maintains
duty to hold separate inquiry before making forfeiture order.
(2) On the issue of locus standi - the applicant is
a bailee holding money for Mr. Belisle and therfore liable
to owner and denied the opportunity to be heard.
Furthermore, persons having "sufficient interest"
Refers to Halsbury supra Vol. 1 para. 107
of evidence confirms what applicant's affidavit states
that the "sum being related to the offence of drug trafficking"
(See line 29 of page of reasons for decision) whereas the
applicant was charged with possession and possession with
intent to supply. Archbold states you cannot forfeit
on charge of possession with which to supply because there
is no evidence that anything was supplied.
question of forfeiture not before the court.
Seeks certiorari to quash decision of the court, mandamus
to compel and prohibition restraining Magistrate from continuing
to detain money.
FIRSTLY, I have to decide whether the applicants grounds
for Judicial Review falls squarely within the established
categories set out by law.
Halsbury Laws of England 4thEd. Vol. 1 para. 147 p.150
as follows under caption "Nature of Judicial Review"
"Certiorari lies, on the application of a person aggrieved,
to bring proceedings of an inferior tribunal before the
High Court for review so that the court can determine whether
they shall be quashed, or to quash such proceedings. It
will issue to quash a determination for excess or lack of
jurisdiction, error of law on the face of the record or
breach of the rules of natural justice, or where the determination
was prccured by fraud, collusion or perjury"
Practice 1991 Volume 1 - p. 825 0.53 r 14/6 p. 822 under caption
"Nature and Scope of Judicial Review" states:
remedy of judicial review is concerned with reviewing not
the merits of the decision in respect of which the application
for judicial review is made, but the decision making process
itself. It is important to remember in every case that the
purpose of (the remedy of judicial review) is to ensure
that the individual is given fair treatment by the authority
to which he has been subjected, and that it is no part of
that purpose to substitute the opinion of the judiciary
or of individual Judges for that of the authority by law
to decide the matters in question." Chief Constable
of North Wales Police v Evans (1982) 1.W.L.R. 1155, p. 1160,
(1982) 3 ALL. E.R., 141, p.143 per. Lord Hailsham L.C.
a decision of an inferior court or a public authority may
be quashed (by an order of certiorari made on an application
for judicial review) where that court or authority acted
without jurisdiction or exceeded its jurisdiction, or failed
to comply with the rules of natural justice in a case where
these rules are applicable, or where there is an error of
law on the face of the record, or the decision is unreasonable
in Wednesbury sense.
court will not, however, on a judicial review application
act as a "court of appeal" from the body concerned;
nor will the court interfere in any way with the exercise
of any power or discretion which has been, conferred on
that body, unless it has been exercised in a way which is
not within that body's jurisdiction, or the decision is
Wednesbury unreasonable. The function of the Court is to
see that lawful authority is not abused by unfair treatment.
If the Court were to attempt itself the task entrusted to
that authority by the law, the court would under the guise
of preventing the abuse of power, be guilty itself of usurping
power; (Chief Constable of North Wales Police v Evans
(1982) 1 W.L.R. 1155, p. 1173, (1982) 3 ALL. E.R. 141, p.
154 per Lord Brightman)
that the grounds upon which this relief is sought are that:
the decision of the inferior Court was ultra vires the power
conferred by Sec. 28(2) of the Misuse of Drugs Act,
the decision of the Inferior Court was contrary to the rules
of natural justice;
the decision of the Inferior Court was made without jurisdiction
and that there is an error of law on the face of the record.
find these grounds are within the established categories set
out by law.
SECONDLY, I must ask myself how is the evidence to be produced
in certiorari proceeding.
appears to be a misconception by counsel for the Crown as
to the manner in which the evidence is to be produced in
Belize Rules of the Supreme Court makes no provisions for
Judicial Review and by O.78 r 1 (Saving Clause) the procedure
and practice then in force in the Supreme Court of Judicature
(U.K.) shall apply.
sets out the practice and procedure in applications for
Judicial Review in the Annual Practice 1991 and a careful
perusal of O.53 reveals that affidavit evidence is contemplated
which sets out the evidence upon which the parties rely
and that viva voce evidence is only utilised in particular
v Northumberland Compensation Appeal Tribunal Exparte Shaw
(1952) 1 K.B. p. 338 Denning L.J. at p. 352 2nd para.
in dealing with this issue made these pertinent remarks:
next question which arises is whether affidavit evidence
is admissible on an application for certiorari. When certiorari
is granted on the ground of want of jurisdiction, or bias,
or fraud, affidavit evidence is not only admissible, but
it is as a rule, necessary. When it is granted on the ground
of error of law on the face of the record, affidavit evidence
is not, as a rule admissible, for the simple reason that
the error must appear on the record itself. See Rex v
Nat. Bell Liquors Ltd. Affidavits were however, always
admissible to show that the record was incomplete, as for
instance, that a conviction omitted the evidence of one
of the witnesses (See Chitty's Practice Vol. 2 at p. 222,
note (d), or did not set out the fact that the justices
had refused to hear a competent witness for the defence
(see Rex v Anon ) whereupon the court would either order
the record to be completed, or it might quash the conviction
the protracted arguments, concerning the admission of the
Notes of Evidence and decision by the Magistrate could have
been avoided if Counsel for the Crown had acquainted himself
with the said 0.53 and filed an affidavit in answer together
with the necessary exhibits.
is a proper procedure under the Rules of the Supreme Court
and the Laws of Evidence for the admissibility of documents.
Documents cannot be thrown at the Court at the whims and fancies
in the interests of justice counsel for the applicant consented
to its admission in accordance with Sec. 8 (2)(1)(a) of the
THIRDLY, I must now turn my attention to what is the "Record"
in this application as both counsels submitted conflicting
views on this matter. What do the legal authorities state.
Laws Vol. 1 4th Ed. para 84 p. 107 states as follows
under the caption "Error on the face of the proceedings."
"The meaning of the record for this purpose has
not been authoritatively determined, but it may be taken
to include the decision itself, such reasons, if any, as
are given for the decision and any other material, or instrument
identified therein with a sufficient degree of particularity
for it to be constructed as forming part of the record."
the learned authors of the U.K. Supreme Court Practice
1991 in O.53 r. 14 p. 825 under the caption "where
there is an error of law on the face of the record"
states as follows in para. 2
what constitutes the "record" has been widely
interpreted: it is not confined to the formal order but
extends to the reasoned decision given by the Judge in his
oral Judgement. (R V v.Crown Court at Knightsbridge,
exparte International Sporting Club (London) Ltd. (1982)
Q.B.304; (1981)3 ALL. E.R. 417, D.C. applying R. v. Northumberland
Compensation Appeal Tribunal (1952) 1 ALL. E.R. 122)"
Rex v Northumberland Compensation Appeal Tribunal supra Denning
L.J. stated in p.352 in the penultimate sentence in
the first para.
these cases, I think the record must, contain at least the
document in which initiates the proceedings, the pleadings,
if any; and the adjudication, but not the evidence nor the
reasons, unless the tribunal chooses to incorporate them.
If the tribunal does state its reasons, and those reasons
are wrong in law, certiorari has to quash the decision."
with this question of what is the record, I would also have
to deal with the hotly disputed argument as to whether in
dealing with this question of forfeiture under S.28(2) of
the Misuse of Drugs Act the Magistrate must hold a seperate
hearing distinct and apart from the hearing on the issue of
innocence or guilt of charges before the court or whether
as was submitted by counsel for the Crown, that there is no
need for any seperate inquiry to be held where the evidence
at the trial provided a basis or points to the money being
related to the offences, and furthermore forfeiture relates
solely as part of the sentence.
authors of Archbold 43rd. Ed. in dealing with forfeiture orders
under the Misuse of Drugs Act 1971 - Summary state
as follows in para. 5 p. 816
any person is convicted of an offence under Misuse of Drugs
Act 1971, section 27 empowers the court to order the forfeiture
of anything shown to the satisfaction of the court to relate
to the offence. The court may order the property to be destroyed
or otherwise dealt with. If a person claiming to be the
owner of the property, or otherwise interested in it, applies
to the court to be heard, the court must give him an opportunity
to show cause why an order should not be made.
to order forfeiture does not apply to offences of conspiracy
to commit an offence under the Misuse of Drugs Act 1971. It
is limited to tangible property to be found within the jurisdiction
of the English courts. The property must relate to the
offence of which the offender is convicted:
where cash is found in the possession of a person convicted
of possessing a controlled substance with intent to supply
the cash will not normally relate to the offence and the power
to order forfeiture under section 27 will not be available
(although other provisions, particularly Drug Trafficking
Offences Act 1986, may apply). Cash found in the possession
of a person convicted of supplying a controlled substance
may be liable to forfeiture under this section, if the court
is satisfied that the cash is the proceeds of the act of supply
of which the offender has been convicted. Where a forfeiture
order is in contemplation, and the offender claims that the
property concerned was not related to the offence of which
he has been convicted, he must be allowed to give or call
evidence bearing on the issue before the order is made."
Again at para. 5 - 532 p. 817 of Archbold supra the said learned
authors under caption "Duty to hear evidence before
making forfeiture order " states as follows: "In
Churcher (1986) 8 Cr. App. R. (s) 94, CSP J4.3(c), the
appellant pleaded guilty on various charges relating to dealing
in controlled drugs. Forfeiture orders were made in respect
of two sums of money found in his possession. The appellant's
counsel offered to call evidence before the orders were made,
to show that the money was not related to the offences of
which the appellant was convicted, but this offer was declined
by the sentencer. Quashing the forfeiture orders, Woolf L.J.
commented that the Court was concerned whether the appellant
had a proper opportunity to put before the trial court material
to establish that the requirements of the section were not
satisfied, and that it was desirable that adequate inquiries
be made to establish that the requirements of the statute
were fulfilled, before orders were made."
find that before making the forfeiture order the Magistrate
has a duty to hear evidence making adequate inquiries to be
satisfied so that she feels sure that the money related to
the offence to which the applicant pleaded guilty or was convicted
as the case may be. In other words the Magistrate is enjoined
to make this finding of fact. Again the learned authors of
Archbold supra at para. 5-531 p.817 under caption "Relation
of Property to the offence of which the offender is convicted"
"Misuse of Drugs Act 1971, section 27 applies only
to things shown "to relate to the offence." The
Court"of Appeal has held in a number of decisions that
the thing proposed to be forfeited must be shown to relate
to the offence of which the offender has been convicted, it
is not sufficient to show that it relates to some other offence.
In particular, where money is found in the possession of a
person convicted of possession with intent to supply a controlled
substance as opposed to supplying a controlled substance),
the court may not order the forfeiture of that money under
Misuse of Drugs Act 1971, section 27, even though it is shown
to be the proceeds of dealing with drugs on other occasions
which are not the subject of charges in the indictment.
See Morgan, February 28, 1977, CSP J4.3(c); Ribeyre (1982)
4 Cr. App.R. (S.) 165, CSP J4.3 (c); Llewellyn (1985) 7 Cr.
App. R. (S) 228, CSP J4.3(c); Cox (1986) 8 Cr. App. R.(S.)
384, CSP J4.3(c); Simms (1987) 9 Cr. App. R.(S.) xxx, CSP
J43.(c)." If therefore the Magistrate had a duty to hear
evidence before making a forfeiture order, it follows that
the notes of evidence of the trial of the co-accused are not
relevant matters for the purpose of the "Record"which
dealt with this issue because the evidence at the trial pertained
only to the question of innocence or guilt of the co-accused.
In other words the question of forfeiture could not arise
during the hearing of whether the accused was guilty or not.
It is only after conviction that this question of forfeiture
can arise as part of the sentencing process.
that arises is,what is the "record" for the purpose
of this application- I find that the record must contain "at
least the document which initiated the proceedings, the pleadings,
if any, and the adjudication or the decision."
find that Ex. A.G. I appended to the applicant's affidavit
is the "Record" for the purposes of this application
I must now deal with the issue as to whether on a charge of
being in possession of cocaine with intent to supply to another
unknown person the magistrate can order forfeiture of money
found on the premises where the drugs were found. "The
power to order forfeiture does not apply to offences of conspiracy
to commit an offence under the Misuse of Drugs Act 1971. It
is limited to tangible property to be found within the jurisdiction
of the English Courts. The property must relate to the offence
of which the offender is convicted: Where cash is found
in the possession of a person convicted of possessing a controlled
substance with intent to supply the cash will not normally
relate to the offence and the power to order forfeiture under
Section 27 will not be available (although other provisions,
particularly Drug Trafficking Offences Act 1986, may apply).
Cash found in the possession of a person convicted of supplying
a controlled substance may be liable to forfeiture under this
section if the court is satisfied that the cash is the proceeds
of the act of supply of which the offender has been convicted."
etc. Archbold 43rd. Ed. in para. 5 - 526 p. 816 2nd para.
supra. Again the learned authors of Archbold emphasise in
para 5 - 531 p.817 2nd para. supra.
particular, where money is found in the possession of a
person convicted of possession with intent to supply a controlled
substance (as opposed to supplying a controlled substance),
the court may not order the forfeiture of that money under
the Misuse of Drugs Act 1971, Section 27 even though it is
shown to be proceeds of dealing with drugs on other occasions
which are not the subject of charges in the indictment."
case the accused was charged with possession of a quantity
of cocaine, and possession with intent to supply.
authorities indicate quite clearly that the power to order
forfeiture "will not be available" simply because
the cash will not normally relate to the offence with which
he is charged.
I shall now deal with the grounds of the application that:-
the decision was ultra vires S.28(2) of the Misuse of Drugs
the rules of natural. justice were infringed,
there is an error on the face of the record,
the decision was unreasonable in the Wednesbury sense.
of the Record in respect of that application for forfeiture
reveals that the entire application was dealt with in two
lines as follows:-
applies for forfeiture of money. Money forfeited."
This is the sum total of the notes of evidence taken in
the application for forfeiture.
applicant's affidavit in paras. 5 - 8 sets out in detail
what took place when this question of forfeiture arose and
since there is no answer or reply filed challenging the
contents of this affidavit, I find that the court must proceed
on the basis that the applicant's version of the events
the burden of proving that the money related to the offence
with which the accused was charged remained on the prosecution
the notes of evidence reveals that:-
the prosecution led no such evidence;
(2) the application was not heard in the application and
therefore was denied the opportunity to give and call evidence
to prove the contrary;
(3) there was no finding of fact by the Magistrate that
the money related to the offence with which the applicant
As a result
of these quite blatant omissions on the record in respect
for the forfeiture application I find that the Magistrate
acted ultra vires the powers conferred by S.28(2) of the
Misuse of Drugs in that no finding of fact was made that
the money related to the offence;
breached the rules of natural justice by not allowing the
applicant to be heard before making the forfeiture order
and thus failing to act judicially;
there was an obvious error on the face of the record in
not hearing evidence, not making findings of fact, and refusing
permission for the applicant to be heard.
above reasons I find that the decision making process in the
application for the forfeiture of money was seriously flawed
and I quash the decision of the Magistrate order of forteiture
will not however, on a judicial review application act as
a Court of Appeal from the lower court below. The function
of the Court is to see that lawful authority is not abused
by unfair treatment.
remit the matter to the Magistrate concerned with a direction
to reconsider the forfeiture order made on the 29th September
1992, and to reach a decision in accordance with the judgement
of this Court in this Judicial Review Proceedings.