Hinds and Others v Director of Public Prosecutions

JurisdictionUK Non-devolved
JudgeLady Dorrian
Judgment Date19 April 2021
Neutral Citation[2021] UKPC 10
Docket NumberPrivy Council Appeal No 0028 of 2019
CourtPrivy Council
Date19 April 2021

[2021] UKPC 10

Privy Council

Easter Term

From the Court of Appeal of Jamaica

before

Lord Lloyd-Jones

Lord Hamblen

Lord Leggatt

Lord Stephens

Lady Dorrian

Privy Council Appeal No 0028 of 2019

Hinds and others
(Appellants)
and
Director of Public Prosecutions
(Respondent) (Jamaica)

Appellants

Alexis Robinson

(Instructed by Myers, Fletcher & Gordon (London))

Respondent

Peter Knox QC

(Instructed by Charles Russell Speechlys LLP (London))

Heard on 1 March 2021

Lady Dorrian
Summary of the legal issues
1

This appeal arises from procedure in Jamaica consequent upon a request by the Kingdom of the Netherlands for mutual legal assistance under the Mutual Assistance (Criminal Matters) Act 1995 (“MACMA”), asking for evidence to be taken from the appellants on oath, and by a judge in court. The taking of such evidence was authorised under section 20 of MACMA. Section 16(3) of the Constitution of Jamaica provides that “All proceedings of every court” shall be held in public. In an agreed statement of facts and issues, the parties stated that determination of the issues arising in the case required the Board to address the following questions:

1. Are section 20 proceedings under MACMA “proceedings” within the meaning of section 16(3) of the Constitution of Jamaica?

2. In any event, even if they are not, are such “proceedings” subject to the common law “open justice” principle referred to by the Court of Appeal?

3. Did the judge have a discretion to decide that the taking of evidence from the appellants should be conducted in public?

4. If so (re (above 3)), did the Court of Appeal err in law or otherwise go materially wrong in upholding the judge's exercise of his discretion?

Background
2

The second to fourth appellants were all members, and office holders, of the People's National Party (“PNP”) which formed the Government of Jamaica in October 2006. They also held public office respectively as: a member of the House of Representatives and minister of Government; member of the Senate and minister of Government; member of the House of Representatives and Minister of Government; and Prime Minister. The first appellant is said to be a businessman with sympathy for the PNP. The respondent, the Director of Public Prosecutions (“DPP”), is the designated Central Authority in Jamaica under MACMA.

3

On 23 October 2006, the then Leader of the Parliamentary Opposition of Jamaica, Bruce Golding MP, wrote to the National Investigation Unit (“NIU”) of the Netherlands asking it to investigate and to determine whether a payment of Euros €466,000 made in September 2006 by a Dutch entity named Trafigura Beheer BV Amsterdam (“Trafigura”) to a Jamaican company called “CCOC Association” (“CCOC”), contravened: the Dutch Penal Code in relation to contributions to political parties and the offences of false accounting, falsification of documents and bribery; the Organisation for Economic Co-operation and Development (“OECD”) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997); and the OECD Guidelines for Multinational Enterprises (2003). The letter explained in detail the basis upon which it was said that an investigation was required.

4

As at the date of Mr Golding's letter to the NIU, the Netherlands was not one of the designated foreign states to which MACMA applied. However, on 9 November 2007, following a change of government under which Mr Golding had become Prime Minister, the provisions of MACMA were made applicable to the Netherlands. On 3 December 2007, the National Public Prosecutor's Office of the NPPO (“the NPP”) sent a request for legal assistance in respect of an investigation underway in the Netherlands relating to alleged breaches by Trafigura of sections of the Dutch Criminal Code which related inter alia to offences otherwise known as bribery of public officials. The letter set out the facts alleged, and asked the Jamaican authorities to carry out various investigations focusing on a number of issues associated with the payment made by Trafigura, and its subsequent disbursement. The assistance sought included the interviewing of various witnesses including the appellants, under audio recorded conditions. The request was approved by the respondent in her capacity as the Central Authority. The first letter of request was followed by a series of supplementary letters of request, asking for additional assistance in investigating further aspects of the case.

5

In the fifth supplementary letter, dated 24 January 2008, it was explained that the proposed interviews had not been carried out, and that scheduled dates for interview with the appellants had been postponed by their lawyer. The respondent was thus asked, inter alia, to invite the appellants to attend for interview at the offices of their attorney on 4 and 5 March 2008. The letter further requested that if the witnesses did not wish to co-operate with an interview, that the respondent should proceed:

“… on the basis of the Jamaican Mutual Assistance (Criminal Matters) Act, section 20 to request the Judge of the Supreme Court or the Resident Magistrate to order the witnesses to attend the proceeding and to give evidence or to produce any document or other articles at that proceedings.”

6

The eighth supplementary letter of request dated 14 April 2009, reported that the appellants had attended for interview as requested and had been asked a number of questions, to which they all responded: “If my assistance is requested in an investigation of bribery I cannot be of any assistance because I do not know anything about that”. The NPP accordingly requested that summonses be issued to the appellants pursuant to section 20 of MACMA, to appear before a judge of the Supreme Court or a Resident Magistrate to give evidence or produce documents or other articles in connection with the investigation. The request was headed “request for judicial summons of the witnesses”, and asked that the judge or resident magistrate order the witnesses:

“to attend the proceedings and to give evidence or to produce any documents or other articles at that proceedings [sic].”

7

Following a request from the respondent for further information required to ensure compliance with the formalities attaching to such a request, a ninth supplementary letter of request, dated 25 May 2009 was sent itemising that information. The request asked that the witnesses give evidence on oath or affirmation, and stated:

“We wish the evidence to be taken by hearing conducted by a judge in court.”

8

It is not disputed that the request complies with the formalities of MACMA and relates to a request legitimately made thereunder.

Court hearings
9

By order pronounced 17 November 2010 the appellants were ordered to appear before a judge of the Supreme Court during a specified period in order to give evidence on oath in answer to the questions which had been proposed in the ninth supplementary letter of request. This order was not appealed.

10

On 9 November 2011, the appellants issued a fixed date claim form applying for an order from the Full Court of the Supreme Court that the taking of their evidence in open court would contravene their rights under the Constitution, on the basis that section 16(3) of the Constitution, which requires “proceedings” to be in open court, did not apply to the taking of evidence under MACMA.

First instance decision
11

At the beginning of the hearing at which their evidence was to be taken, the appellants sought an order that the matter be heard in chambers. The essence of the arguments advanced was simply that there was no procedure in Jamaica under which questioning of witnesses such as the appellants would take place in open court; investigative evidence gathering should be done in private, in accordance with Jamaican law. It was implicit in this argument, although it does not seem to have been positively asserted, that section 16(3) of the Constitution had no application in the circumstances. The appellants also sought a stay of proceedings pending the hearing of their constitutional motion before the Full Court. The judge, Campbell J, refused both motions in an ex tempore decision. He refused the application to hear the evidence in private on the basis of the principles of open justice. He noted that even when a matter was heard in chambers the judicial process remained an essentially public function ( Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056).

12

Before the taking of evidence had commenced, a stay was granted by the Full Court. Meanwhile, an appeal was lodged against the decision of Campbell J who prepared a written judgment for the benefit of the appeal court in which he elaborated on the reasons for his decision.

Decision of the Court of Appeal
13

It was now overtly argued for the appellants that section 16(3) had no application to the procedure under section 20 of MACMA. The procedure was a purely investigative one and according to Jamaican practice the questioning should take place in private.

14

The court's decision emphasised the vital role of the principle of open justice as an aspect of the rule of law, under reference to Scott v Scott [1913] AC 417. That principle found expression in section 16(3) of the Constitution, where the width of the language used was apt to cover MACMA procedure. The open justice principle could be departed from where that was necessary in the interests of justice. Thus there was, as had been found by the Full Court in the constitutional case, a discretion inherent in the operation of section 16(3). Upon examination of the circumstances the appeal was dismissed.

Constitutional motion
15

The appellants' constitutional motion was dismissed by the Full Court of the Supreme Court in September 2013. The court rejected the contention that the decision to conduct the MACMA proceedings in open court...

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