Bobette Smalling v Dawn Satterswaite and others (Jamaica)

A search and seizure warrant under the Jamaican Proceeds of Crime Act 2007 may authorise seizure of information or material created before the Act came into force, provided the material is relevant to the investigation and the statutory conditions are met. The substantial-value condition concerns value to the investigation, not merely admissibility at trial, and may include background, explanatory, mens rea or investigative material. The public-interest condition requires a fact-sensitive balance between crime prevention and privacy. Repeal of the Money Laundering Act preserves investigations and proceedings within its temporal scope. POCA governs offences whose predicate and substantive conduct occurred on or after 30 May 2007.

The appellant, an authorised financial investigator, obtained a search and seizure warrant under the Proceeds of Crime Act 2007 in connection with suspected money laundering involving the respondents and property transactions. Some relevant documents pre-dated POCA’s commencement on 30 May 2007. Straw J ordered that the seized material be examined, including documents created before that date, in determining claims to legal professional privilege: [2015] JMSC Civ 183. The Court of Appeal reversed that decision and ordered the return of pre-commencement documents: [2019] JMCA Civ 43. The central issue was whether a POCA warrant could authorise the search for and seizure of pre-30 May 2007 material relevant to a POCA investigation.

1. Appeal allowed. Lord Stephens delivered the judgment of the Board, with whom Lord Hodge, Lord Briggs, Lord Hamblen and Lord Burrows agreed. The Board advised His Majesty accordingly.
2. Interaction between the statutory regimes. Under POCA, criminal conduct means conduct occurring on or after 30 May 2007. A substantive money-laundering offence requires a predicate offence generating the criminal property. By section 25(2)(d) and (e) of the Interpretation Act, repeal of the Money Laundering Act did not affect penalties, investigations or proceedings for offences within that Act’s temporal scope, absent a contrary intention. The MLA therefore continued to govern cases where the predicate offence preceded 30 May 2007, including where the substantive laundering conduct occurred later. POCA applied where both the predicate and substantive offences occurred on or after that date.
3. Substantial value. The statutory condition requires reasonable grounds for believing that material is likely to be of substantial value to the investigation. The inquiry is fact-sensitive. Material may satisfy the condition even if it is not itself admissible at trial, and may provide background, explanatory evidence, evidence of mens rea, a train of enquiry, or evidence that eliminates a suspect. There is no restriction based on the date when the material came into existence.
4. Public interest. The judge must also have reasonable grounds for believing that obtaining the material is in the public interest, having regard to the benefit likely to accrue to the investigation. This requires a balance between the public interest in investigating crime and the protection of privacy. On the facts, the prevention of crime outweighed privacy interests.
5. The statutory conditions were satisfied. The respondents’ conveyancing files and related financial and transactional material could substantially assist the investigation, despite the age of particular transactions. POCA imposed no restriction preventing the search for or seizure of pre-30 May 2007 material. Straw J was correct; the contrary order of the Court of Appeal was set aside in substance.

1. Privy Council: Appeal from the Court of Appeal of Jamaica allowed. The Board advised that the appeal should be allowed.
2. Court of Appeal of Jamaica: In [2019] JMCA Civ 43, allowed the challenge to the High Court order and held that pre-30 May 2007 documents seized under the POCA warrant had to be returned unless post-commencement criminal conduct could be demonstrated.
3. High Court of Jamaica: In [2015] JMSC Civ 183, Straw J ordered that the seized material be unsealed and examined, whether or not it pre-dated 30 May 2007.