Select a region
A lawyer who represented a retired Nigerian General in his failed bid to recoup nearly £2m of dirty money seized by Jersey has called the judgment a "victory for human rights” – despite it going against him.
Appearing in the Court of Appeal last month, Advocate Heren Mistry represented Lt-General Jeremiah Timbut Useni, who has been a significant public figure in Nigerian politics for a quarter of a century and was the second most senior officer under the rule of corrupt General Sani Abacha between 1993 and 1998.
Nor only did Advocate Mistry argue against the previous seizure of assets by Jersey's Royal Court, he also challenged the decision not to grant Lt Gen Useni access to the funds for the purpose of defending in legal proceedings.
In a recently published judgment, the Court of Appeal rejected the bid to overturn the earlier Royal Court decision, which supported the Attorney-General’s assertion that the money frozen in the accounts was the proceeds of concealed bribes and corruption that Lt-Gen Useni had received during his time in office.
Pictured: The Court of Appeal upheld the Royal Court's forfeiture decision.
However, while dismissing the thrust of the appeal, the higher court did comment on some of the human rights arguments put forward by Advocate Mistry.
“Although we have rejected the Appellant’s appeal, it will be apparent from our reasoning that, in other circumstances, the inability of a respondent in forfeiture proceedings to secure legal representation could result in an unfair trial,” said the Court.
“The Attorney General founded strongly on the availability to a bank customer whose account is not operational following the submission of a Suspicious Activity Report of the two remedies discussed in Minwalla and Garnet [judicial review of police decision to freeze money or taking action against a bank to force it to comply with its mandate to give money to a client, as requested].
“We are not convinced that these remedies provide an answer to the difficulty which could arise from the absence of any statutory power to make an order enabling funds to be used to meet legal expenses.
“A respondent who genuinely cannot fund legal representation in Jersey, and who cannot participate effectively in forfeiture proceedings without such representation, is liable to face difficulties in pursuing those other remedies as well.
“In any event, the question which arises in this case – namely, whether the release of funds is necessary to enable the respondent to participate effectively so as to obtain a fair trial – would not be an issue in private law proceedings against the bank or a judicial review of the police decision not to consent to dealing.”
The Appeal judges added: “Should a case come before the Courts in which the issue arises sharply – i.e. where the respondent truly cannot obtain legal representation necessary for a fair trial without access to funds which are the subject of the forfeiture proceedings – a number of consequential issues would require to be addressed.
“It would be better for those to be considered in a case where they are live issues and have been fully ventilated.”
Advocate Mistry said after the judgement: “Although HM Attorney General is heralding this as a victory for the forfeiture regime in Jersey, he has failed to recognise that the law as it stands, denies defendants the right to a fair hearing if they are unable to fund their lawyers, and the Court of Appeal has not closed the door for future applications before the Jersey Court’s for these arguments to be made again.
“Furthermore, the Court of Appeal has confirmed that the defendant’s right to peaceful enjoyment of his property is also engaged, which is also open for argument in the future.
“I am of the opinion that following on from the Court of Appeal judgment, there will be further challenges made to the forfeiture regime in Jersey and I am confident that at some stage there will be a finding that the law as it stands is not compliant with human rights. This decision, although disappointing for my client, is a victory for human rights.”
Comments
Comments on this story express the views of the commentator only, not Bailiwick Publishing. We are unable to guarantee the accuracy of any of those comments.