Attorney general loses round one in POCA challenge

Attorney general loses round one in POCA challenge

BY ALICIA DUNKLEY-WILLIS
Senior staff reporter
dunkleywillisa@jamaicaobserver.com

Saturday, July 11, 2020

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The Appeal Court yesterday threw out the challenge brought by the State against the 2014 injunction granted by then Judge Justice Bryan Sykes which gave the Jamaican Bar Association a temporary reprieve from certain legislative requirements under the Proceeds of Crime Act (POCA) with which it is at odds.

The Bar Association in 2014 challenged the Government over provisions under the POCA which would essentially force lawyers to report instances of financial crimes uncovered when dealing with their clients. In the claim seeking an injunction pending the hearing of a constitutional motion to strike down the areas of the law which were in question, the association argued that the requirements as they stand would, among other things, breach lawyer-client privilege which holds that matters discussed do not have to be disclosed to a third party.

It also sought the court's determination on several matters, including whether the powers of the General Legal Council to examine and take copies of information or documents in the possession of attorneys infringed the constitution.

Justice Sykes, in granting the injunction, exempted attorneys-at-law from complying with certain legislative requirements and granted an interlocutory injunction, restraining the General Legal Council from carrying out certain functions. These orders were made pending the hearing of the constitutional motion. The attorney general appealed the ruling, arguing, among other things, that there could not be an injunction against the Crown and that an injunction could only be successfully brought at the Bill stage (before the provision is passed into law). It also sought to have the injunction set aside.

Yesterday however, the Court of Appeal, in the first of a two-part ruling, said Justice Sykes was correct in his decision.

In that ruling Justice Sykes ordered that the attorneys-at-law to whom the Proceeds of Crime Act was extended by reason of Proceeds of Crime (Designated Non-Financial Institution) Attorneys (Order), 2013 (DNFI Order) are exempted from and/or are otherwise not required to comply with various Acts, regulations, orders or guidance pending the outcome of the constitutional motion.

These included: The Proceeds of Crime Act and Proceeds of Crime (Money Laundering Prevention) Regulations 2007; the General Legal Council of Jamaica Anti-Money Laundering Guidance for the Legal Profession that was published in the Jamaica Gazette Extraordinary of Thursday, May 22, 2014, Chapter IV sections 94 and 95 of the Proceeds of Crime Act in so far as it requires attorneys-at-law to report suspicious transactions (STRs) directly to the Financial Investigations Division and the amendment to the Legal Profession Act to insert in section 5(3C) any regulation(s) issued or made pursuant thereto including The Legal Profession (Annual Declaration of Annual Activities) Regulations, 2014, July 10, 2014.

The order also extended to the amendment to Canon IV of the Legal Profession Act (Canons of Professional Ethics) to remove the proviso that enjoined the attorney's ethical obligation to protect client confidences and permit client confidences to be revealed in compliance with the Proceeds of Crime Act.

The General Legal Council was also restrained from exercising the functions conferred on it under section 91A(2) of the Proceeds of Crime Act, including the power to examine and take copies of information or documents in the possession or control of any of the businesses concerned, and relating to the operations of attorneys to whom the Proceeds of Crime Act was extended under section 91A (2) (c) of the Proceeds of Crime Act or to establish such measures including carrying out or directing third parties to carry out inspections or verifications in order to determine whether the attorneys-at-law are complying with the Proceeds of Crime Act under section 91A (2)(a).

The Appeal Court, in its ruling yesterday, pointed out that “an important concession by the Crown” at the end of its submissions was that “the court does have the power to grant an injunction against the Crown” even thought it went on to contend that there was power to do so only at the Bill stage and before a Bill was enacted into law.

Appeal Court Judge Mr Justice Frank Williams, in handing down the decision, said he could “discern no fault with or error in the procedure adopted by Justice Sykes in arriving at his 2014 conclusion”.

“It cannot be said on this basis, therefore, that the learned judge was palpably wrong. It is abundantly clear from the learned judge's discourse, therefore, that, rather than considering irrelevant matters or approaching the matter incorrectly, as the appellant has suggested, he had, at the forefront of his thoughts and as his primary aim, the fulfilling of the court's mandate as the upholder of the constitution. No error can be discerned in the approach that the learned judge took; or in the conclusion at which he ultimately arrived; or with the orders that he made,” Justice Williams said.

“It seems to me, after a consideration of the law, the facts and all the circumstances of this case that the true position in regard to the granting of injunctions against the Crown is as follows: (i) The Supreme Court of Judicature of Jamaica may grant an injunction against the Crown to restrain the coming into force or operation of legislation, either at the Bill stage or after that Bill has been enacted into law,” Justice Williams added.

“In either case, the grant of any such injunction is not a remedy that is to be ordered routinely; but ought to be ordered only in exceptional circumstances, moreso when the bill has already been passed into law. Additionally, it is to be expected that any application made after the Bill has been enacted into law would be made very promptly thereafter,” he said.

“I am of the view that the appeal should be dismissed. In light of the wide public-interest nature of this appeal, and the fact that, in bringing it, the appellant cannot be said to have acted unreasonably, I would also order that there be no order as to costs. If the parties take a different view, they may file written submissions on the question of costs within 14 days of the date of this judgement, the said question of costs to be considered by the court on paper,” the ruling said further.

Just ahead of the handing down of the judgement, the court said it had hoped to release both sides of the judgement together and apologised to attorneys for the delay in the delivery. It said the court would be making every effort to have the main decision dealing with the constitutionality of the legislation regarding lawyer client privilege ready at the end of the present court term in July or the first week in the second term.


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