CHARGED: DSS founder and administrator Kerron Clarke.
TWO Appeal Court judges have reserved their ruling on an appeal filed by Drug Sou Sou (DSS) founder Kerron Clarke over a magistrate’s decision to extend the detention of $656,200 seized from him in a raid on his organisation in 2020.
At the end of submissions from Clarke’s attorney Rosario Sookdeo and assistant DPP Sabrina Dougdeen-Jaglal on Tuesday, Justices of Appeal Mark Mohammed and Maria Wilson reserved their decision.
Mohammed said the appeal raised a novel area of law which required scrutiny because of its importance.
In submissions, Sookdeo argued that in ordering the further detention of the cash, the magistrate failed to consider all the relevant legal considerations under the Proceeds of Crime Act, in particular, if there were reasonable grounds to suspect the cash was linked to the commission of a specified offence or intended to be used in one.
He said it appeared the magistrate only focused on whether the police investigation was ongoing.
Sookdeo said under the act, the magistrate had to consider both limbs, but did not, and there was no evidence from the police that suggested there were “reasonable grounds” for the continued detention. He also argued the magistrate failed to give reasons in her first detention order, depriving his client of the benefit to challenge it.
However, in opposing the appeal, Dougdeen-Jaglal said although the act did provide for both limbs to be satisfied, while the magistrate appeared to have not engaged the “reasonable ground” aspect, there was evidence before her, since the financial investigator who testified in support of the application spoke to where the police investigation was at the time.
She said that was the evidential basis to satisfy the first limb, adding that it was the same magistrate who granted the initial detention order, so any further application strengthened the initial ground of suspicion by the police.
“The financial investigator’s evidence went towards why they needed more time,” she said.
Dougdeen-Jaglal also addressed an argument on the failure of the State to disclose information to Clarke in the application. She said there were no rules, statutes or procedures locally that governed disclosures on such applications.
Even so, she said, disclosure would have been premature at this stage since the genesis of the application would be centred on how the cash was allegedly obtained and for what purpose. She said the proper time to request disclosure would be at the stage of forfeiture, if it came to that.
In 2020, officers of the Special Operations Response Team (SORT) and other divisions raided DSS’s headquarters at Kathleen Warner Drive in La Horquetta.
The money was lodged at the La Horquetta Police Station, but was later returned.
Two senior police officers from Barbados were recruited to probe the incident.
The cash which is the subject of the pending forfeiture application was seized during subsequent raids on the headquarters.
Clarke was charged with two offences under the Proceeds of Crime Act and was granted $300,000 bail.
One of the charges is that between May 2019 and February 2021, Clarke received a television as collateral for a loan which the recipient was unable to repay. He is also accused of receiving $1,850 in interest on a loan while running a moneylender’s business without a licence.
Some of the money seized from him in the subsequent raids has since been returned after the police were denied applications to extend its detention.
A larger sum of cash seized, some $6.4 million, is the subject of a similar application before another magistrate.