Williams v The Supervisory Authority (Antigua and Barbuda)

A civil forfeiture regime does not become criminal merely because it requires proof that a defendant engaged in conduct constituting a criminal offence. Where the regime concerns property rights, operates on the balance of probabilities, does not require conviction of a particular offence, and imposes no criminal record, imprisonment or fine, criminal-charge protections do not apply. A threshold finding may place the burden on the defendant to establish that particular property was acquired legitimately. That allocation may be proportionate where the defendant is best placed to know the source of the property. Exceptional disproportionate applications may require a constitutional qualification, but the regime was proportionate as applied.

The appellant was convicted in Antigua and Barbuda after being found in possession of cocaine with intent to sell. The Supervisory Authority obtained a freeze order over two properties and later sought civil forfeiture under the Money Laundering (Prevention) Act 1996. Henry J made the forfeiture order on 10 September 2015. The Court of Appeal of the Eastern Caribbean Supreme Court dismissed the appellant’s appeal on 13 July 2017.

Before the Board, the appellant challenged the validity of the freeze order and argued that the combined freeze and civil forfeiture regime was criminal in nature or incompatible with sections 3, 7, 9 and 15 of the Constitution of Antigua and Barbuda. The central questions were whether the regime was civil or criminal and whether its operation was constitutionally permissible.

The Board unanimously dismissed the appeal and upheld the freeze order of 9 July 2009 and the civil forfeiture order of 10 September 2015.

1. The freeze order and civil forfeiture provisions of the Money Laundering (Prevention) Act 1996 form an integrated regime. Under section 2H, the relevant question is whether the defendant did something which, at the time, constituted a money laundering offence. Charge or conviction is unnecessary. Under section 20A(2), the Authority must establish on the balance of probabilities that the defendant engaged in money laundering activity within the relevant six-year period. The finding need not identify a particular offence.
2. The conduct proved against the appellant in support of his conviction under section 12(1) of the Misuse of Drugs Act also included possession with intent to supply under section 6(3). That conduct was money laundering activity at the relevant time. The Authority therefore had reasonable grounds for the freeze order under section 19(1)(c), and there was no valid challenge to it.
3. Applying the adapted Engel v The Netherlands (No 1) (1976) 1 EHRR 647 criteria, the regime was civil in domestic classification, concerned a general category of conduct and property rights rather than a specific criminal charge, and imposed no criminal penalty. The Board followed the reasoning in Walsh v Director of the Assets Recovery Agency [2005] NICA 6, while distinguishing Welch v United Kingdom (1995) 20 EHRR 247, which concerned a direct connection between conviction and confiscation. Section 15 of the Constitution therefore did not apply.
4. Compliance with sections 3(a), 3(c) and 9 required a proportionate balance between individual property rights and the public interest. The regime pursued the legitimate aim of preventing persons from profiting from money laundering and drug trafficking. Its threshold was rationally connected to that aim, no ready substitute was apparent, and the defendant had a fair opportunity to prove legitimate derivation of property. The burden under section 19B(6) was proportionate because the defendant was ordinarily best placed to know the source of his assets. The proportionality approach in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 was applied.
5. Section 7(1) was irrelevant because the orders were preventive and property-based, not punishment, and the appellant had been treated with dignity. The Board added that an exceptional disproportionate case might justify refusing an application or reading a qualification into sections 20A(2) and 19A(1A).

• Privy Council. On 8 June 2020, the Board dismissed the appeal and upheld the freeze and civil forfeiture orders.
• Court of Appeal of the Eastern Caribbean Supreme Court. On 13 July 2017, the court dismissed the appeal and upheld Henry J’s civil forfeiture order.
• High Court of Antigua and Barbuda. Henry J made the civil forfeiture order on 10 September 2015. Harris J had earlier dismissed the appellant’s application to discharge the freeze order on 14 October 2009.