EDITORIAL - Move the constraints to grabbing criminal proceeds

Les Green's revelation that the Jamaican authorities have, over the past four years, been forced to give back nearly 90 per cent of the cash they seized under the Proceeds of Crime Act is not only startling, but in need of further and deeper explanation.

For, on the bald information provided by Mr Green at a recent seminar on money laundering, and quoted by this newspaper, it would not be unreasonable to draw an inference of incompetence on the part of those with responsibility for enforcing the legislation.

Nor would it be unreasonable, we think, to see a link between the statistics quoted by the assistant commissioner of police and the planned move by the administration, as announced by the finance minister, Mr Audley Shaw, to replace the civilian head of the Financial Investigations Division (FID) with a senior police officer.

Decision driver

That decision, said Mr Shaw, was driven by a wish to lessen the likelihood of the head of the FID being responsive to intimidation and fear.

The foregoing, nonetheless, presuming Mr Green's information is accurate, does not adequately explain the seeming failures of the system, especially when we have been led to believe that the performance was better.

According to Mr Green, since June 2007 and up to last month, the authorities had seized approximately J$771 million, which was deemed to have been derived from criminal enterprises or from persons who were felt to have a criminal lifestyle.

But of that amount, J$689 million, or a little over 89 per cent, was given back. In other words, the Jamaican authorities have been able to keep under 11 per cent.

"We are not being as effective with the powers that we have," said Mr Green. "We are not getting the results we should be getting."

That remark belabours the obvious. But neither it nor Mr Green's two offerings of contributory reasons provide, in our view, a viable explanation.

One of Mr Green's observations is that Jamaica has failed to utilise its various mutual assistance agreements to gather information from foreign law-enforcement agencies on persons whose assets the authorities believe should be subject to a forfeiture order. The other is that the judicial system, including judges, places too high a threshold, beyond the requirement of the law, for deciding on forfeitures.

Latter claim

The latter claim we doubt. Jamaican prosecutors and judges, we know, understand clearly the concept of balance of probabilities, which applies to a person's conduct and his accumulation of assets in cases where forfeiture is sought via the civil procedure route.

The other issue is the seeming failure of investigators to gather the facts. First, when the authorities seize cash, there is the possibility of it being held for up to two years. Once an application has been made for its forfeiture it can't be released until the proceedings is complete.

Time, or a need to scramble to make the case, seems not to be the issue. The constraints are elsewhere.

Perhaps new leadership at the FID and a new financial crime unit in the police force are what are needed to clear the logjam. For the Proceeds of Crime Act is a good tool with which to attack organised crime.

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