The Attorney General v Samuel Knowles Jnr and another

An order made abroad to recover the value of criminal proceeds can be an external confiscation order even when the foreign jurisdiction calls it a forfeiture order and expresses it as a money judgment. Under the Proceeds of Crime Act 2000, the documentary procedure in the Proceeds of Crime (Designated Countries and Territories) Order 2001 is an evidential route, not an exclusive gateway. Non-compliance with its formal requirements invalidates registration only if that is the consequence Parliament intended, assessed by reference to fairness and statutory purpose. Notice is required only for a person affected by the order. Registration of a monetary order against a defendant does not itself charge or remove a third party’s beneficial interest in property.

The Attorney General sought to register in The Bahamas a US money judgment for US$13,900,000 following the respondent’s conviction for drug trafficking. Registration was initially made ex parte. At an inter partes hearing, Senior Justice Longley declined to discharge it, but the Court of Appeal held that registration was not legally permissible and discharged the order.

The appeal concerned whether the US order was an external confiscation order under the Proceeds of Crime Act 2000; whether a request from the United States and the documentary requirements in article 7 of the Proceeds of Crime (Designated Countries and Territories) Order 2001 were essential; whether the other respondents required notice; and whether registration affected their claimed beneficial interests.

1. Appeal allowed. The Board advised that the order of the judge registering the US order under section 50 of the Proceeds of Crime Act 2000 should be restored. Costs submissions were invited within the specified periods.
2. Nature of the US order. The statutory definition covered an order made in a designated country to recover the value of property obtained by or in connection with drug trafficking. Although US terminology used forfeiture and the order followed a pro-forma, the evidence showed that it was a money judgment for the value of drug-trafficking proceeds. It was therefore an external confiscation order.
3. Request and evidential procedure. The evidence established that the US Attorney General had made a request for judicial assistance. Article 7 of the 2001 Order provided one possible evidential route to registration. It did not make the prescribed request, copies and certificate the exclusive means of proving entitlement to apply. The enabling power in section 49(1)(b)(ii) was permissive, and the Attorney General could establish that he acted on behalf of the foreign government by other evidence.
4. Procedural non-compliance. Even if article 7 imposed a unique procedural route, failure to comply with its precise requirements would not automatically invalidate registration. Following R v Soneji [2005] UKHL 49; [2006] 1 AC 340, the consequence depended on parliamentary intention. There was no unfairness where the relevant information appeared in affidavit evidence.
5. Notice and third-party interests. The US order operated only against the defendant, requiring him to pay US$13,900,000. The other respondents were not persons affected by it for section 50(1)(b), because it did not itself operate on property in which they claimed an interest. Registration did not deprive them of, or charge, any beneficial interest. Enforcement could later proceed against assets beneficially owned by the defendant, but ownership claims remained available to the other respondents.
6. Judicial registration. The Board rejected the submission that article 7 made the Attorney General the sole decision-maker and registration an administrative act of the Registrar. Section 50 required registration by the court after consideration of the interests of justice.

1. Privy Council: In [2017] UKPC 5, the appeal was allowed and the registration order restored.
2. Court of Appeal of the Commonwealth of the Bahamas: Held that registration of the US order had not been legally permissible and discharged the registration.
3. Supreme Court of The Bahamas: Senior Justice Longley refused, at the inter partes hearing, to discharge the initial ex parte registration.