The Court of Appeal has ruled in favour of Kerron Clarke, founder of the Drugs Sou Sou (DSS), overturning a magistrate’s decision to extend the detention of $656,200 under the Proceeds of Crime Act (POCA).
The judgment, written by Justice of Appeal Mark Mohammed, found Clarke’s rights to due process and natural justice had been violated.
Justice Maria Wilson agreed with the decision.
In 2020, officers of the now-defunct Special Operations Response Team (SORT) and other divisions raided DSS’s headquarters at Kathleen Warner Drive in La Horquetta. Police seized $656,200 in cash from Clarke’s home during a search for unlicensed firearms.
While no firearms were found, the cash was confiscated under the Proceeds of Crime Act (POCA), with police suspecting it to be linked to money laundering or other specified offences.
A magistrate granted an initial detention order allowing the cash to be held for three months, and just before the initial order expired, police sought an extension, which was granted for a further three months.
Clarke appealed this decision on several grounds.
Clarke’s appeal raised multiple issues, including the lack of evidence disclosure, procedural fairness and the magistrate's improper weighing of considerations.
The Court of Appeal found merit in the first six grounds of the appeal, identifying significant errors.
In his ruling, Mohammed noted that while POCA does not explicitly mandate that police officers provide documentation to support detention extensions, the rules of natural justice required disclosure of such evidence to ensure fairness. By failing to demand these documents, the magistrate deprived Clarke of the opportunity to challenge the application effectively.
“That cannot be what the POCA intended. This is so because issues of fundamental rights and the deprivation of property are involved,” Mohammed said.
[caption id="attachment_1128501" align="alignnone" width="430"] DSS founder Kerron Clarke. -[/caption]
He added, “It is undeniable that the legislature omitted to provide that a Customs and Excise officer or a police officer must provide supporting documentation to buttress his or her application for a further detention order.
“However, such a myopic reading of the POCA is not consistent with the spirit of the act and is not the end of the matter. Because of the draconian nature of the POCA, and because section 38 permits specified persons to deprive individuals of their property, the omission of the legislature to provide sufficient safeguards to ensure that there is no abuse of such further applications must be supplied by the common law, and this court.
“This omission requires the court to hold that affected parties must be provided with the documentary evidence upon which a further detention order is predicated.
He also emphasised that constitutional protections, including fair trial rights, were implicit in POCA and said they must guide detention orders.
Mohammed also agreed with Clarke’s complaint that the police provided no evidence to extend
