LEGAL OPTIONS AVAILABLE TO CHIEF JAMES IBORI ON THE CONFISCATION OF HIS PROPERTY BY CROWN COURT IN LONDON
by HON. DR. TONYE TIMI
One read with utter trepidation and displeasure the order made by British Judge David Tomlison of the London Southwark Crown Court in the case between the British Government and former governor of Delta State, Nigeria, Chief James Ibori.
The ruling by Judge Tomlinson, ordering the forfeiture and sale of Chief Ibori’s property which value as stated by the court is put at £101.5 million ($130m) is to be disposed of as proceeds of corruption. We know that this is a continuation of a case that has lingered since 2011 and for which Chief Ibori was previously sentenced to a thirteen (13) year term in British jail, which he has duly served.
Chief Ibori has served his punishment and so enough should be enough in the hounding and torture of the man by British Courts and by extension, the British government.
It appears now that the British court system is persecuting and badgering a man rendered hostage by the failure of its investigative institutions and punished more for hate than for the legal infractions committed by him. We are informed that many of the properties under the custody of the British government do not all belong to Chief Ibori but also to friends and business partners.
It is disappointing that the British court continues to beat on a man who has been brought down by its high handedness and even now continues to badger him even after he has served his punishment.
While expressing support for Chief James Ibori in his commitment to appeal this noxious and vexatious judgement by the British Southwark Crown Court, one is quite aware that there are other options available to pursue.
In principle a confiscation order is made after conviction to deprive the defendant of the benefit derivable from his crime. The prosecutor is able to take steps to preserve assets so that they are available to pay the order. If the order is not paid voluntarily then either the magistrates’ court enforces the order as if it were a fine or the prosecutor may apply to the High Court to appoint a receiver.
Under what powers can a court make confiscation order?
In the United Kingdom, the Proceeds of Crime Act (2002) introduced something known as a ‘confiscation order’. A confiscation order is awarded to a person deemed to have significantly benefited from crime, with the intention of making those issued with the order to pay back any such gains, or face further sanction from the court. It can only be given in the event of somebody being convicted of, or pleaded guilty to, a crime from which they have derived financial benefit and are set to be sentenced in the crown court. The amount a person needs to pay under a confiscation order will be decided based on how much it is deemed that the defendant has earned from their crimes. Traditionally this is calculated by subtracting any priority payments from the value of the defendant’s realizable assets. It has been argued that paying back a confiscation order can require the defendant to sell off their assets, even those considered to have been purchased legitimately.
The Drug Trafficking Act 1994 (DTA) and Part VI of the Criminal Justice Act 1988 as amended by the Powers of Criminal Courts Act 1995 (CJA) gives the Crown Court powers to make confiscation orders. The CJA also gives the magistrates’ courts a limited power to make confiscation orders.
The following are some of the listed legal options that the ex- governor can explore:
(I) Appeal the confiscation and compensation orders. If that happens, on appeal, the compensation order may be reduced or revoked. (He can obtain the reduction of a confiscation order made under sections Section 17 of the DTA and Section 83 of the CJA. The procedure commences with first, applying to the High Court for a “certificate of inadequacy”. If a certificate is issued, he may apply to the Crown Court for the balance remaining under the order to be reduced.
That court may then substitute such lesser amount as it deems just and reduce the period of imprisonment in default;
(2) Apply to the court for extension of time to pay to obey the confiscation order. Section 5 of the Serious Crime Act of 2015 makes provision for extension of time window for between three to six months.
Conclusively for the ex- governor to adequately explore the options listed above among others, he must engage the services of the following professionals:
(1) Asides from a litigation legal practitioner, he should engage the services of CONFISCATION SOLICITORS
(ll) Also he has to engage the services of FORENSIC ACCOUNTANTS. It has been argued that the initial figure in a confiscation can often be overly harsh when compared to the actual crime committed. Lowering the amount in a confiscation order can be a difficult and lengthy process. However, a dedicated, expert forensic accountant will possess all of the skills and knowledge required to prove that the amount should be lowered on his behalf.
A forensic accountant possesses the required expertise to analyse relevant data and documents in order to uncover new evidence regarding things such as legitimate income, in order to separate it from the amount deemed to have been gained through crime, they can also accurately trace payments between multiple parties to attempt to prove legitimacy, and lower the amount owed.
We hope that the once revered British sense of Justice and fairness will be upheld in this long drawn case at the appellate Court.
Hon. Dr. ‘Tonye Timi, a Lecturer was a former Member, Delta State House of Assembly