The Accused was provisionally charged for the offence of Money Laundering in breach of Sections 3(1) ((b) and 8 of the Financial Intelligence and Anti Money Laundering Act.

Counsel for the Accused moved that the provisional charge against the Accused be struck out on the following grounds:

·       No reasonable suspicion and no basis for the provisional charge to stand

·       The facts relied upon are not consistent with the implication of the suspect with the crime.

The motion was resisted by the Prosecution and arguments were heard on 24.04.2025.

The Court analysed the purpose and meaning of a provisional charge and assessed whether there was sufficient evidence to justify a provisional information.

The Court quoted the following extracts from the case of MANRAJ D D & ORS v ICAC 2003 SCJ 75:

“Reasonable suspicion” is no instinct, allows no guess, no sixth sense. It is scientific. It has to find support on facts, not equivocal facts but facts consistent with guilt….” “Reasonable suspicion, in contrast to mere suspicion, must be founded on fact. There must be some concrete basis for the officer’s belief, related to the individual person concerned, which can be considered and evaluated by an objective third person.”

First, the suspicion should be reasonable: King v Gardner (1979) 71 Cr. App. R. 13; Prince [1981] Crim. L. R. 638. Second reasonability should be gauged not from the personal point of view of an officer or his subjective standard. It should be appreciated from the objective standard, the point of view of a dispassionate bystander: Inland Revenue Commissioners v Rossminster Ltd [1980] A.C. 952. Finally, and importantly, the suspicion should be based on facts: King v Gardner (supra); Prince (supra); Ware v Matthew February 11, 1981, 1978 W. No. 1780 (Lexis). The facts relied on should be such as are consistent with the implication of the suspect in the crime: Pedro v Diss [1981] 2 All ER 59, D.C.; [1981] Crim. L.R. 236. It should not be equivocal with his implication and his non implication. Only then will an Officer’s exercise of powers on reasonable suspicion be democratic and not autocratic and the power user be said to be making a difference between democracy and dictatorship.”

The Court held as follows:

“A relevant consideration in assessing whether a reasonable suspicion exists is the stage and progress of the investigation. The enquiry into the alleged offence began in 2017, more than 7 years prior to the laying of the present provisional charge. Despite the prolonged duration of the investigation, the authorities have not identified any fresh or compelling material between 2024 and the date of arrest that alters the evidentiary landscape.

Until late 2024. The police themselves reportedly did not consider there to be sufficient basis to arrest or charge the Accused. A decision to proceed with a provisional charge was ultimately taken in January 2025, but the record does not reflect any newly acquired material or objective development justifying this change in assessment.

The use of a provisional charge as a holding device, pending a continuing investigation- especially one that has spanned several years- must be viewed with caution to prevent misuse or overreach (Mootoosamy v The Queen [1981 SCJ 432]; Shaik v State [1994 SCJ 233]).

In the absence of new and material developments that would justify a shift in prosecutorial posture, the continued maintenance of a provisional charge may amount to an abuse of process and an infringement of the Accused’s Constitutional rights.

Considering the above, the Court therefore finds that all these taken cumulatively do not meet the test of “facts or information which would satisfy an objective observer, that there was reasonable suspicion justifying the arrest and or this provisional information.”

For all the reasons given at paragraphs 8 to 20 and their respective sub-paragraphs above, this Court is therefore ready to exercise its inherent powers to strike out the provisional charge, at this stage. The motion of the Accused is therefore upheld. The provisional charge is therefore struck out against the Accused.”