Panday v Virgil (Senior Superintendent of Police)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Brown of Eaton-under-Heywood |
| Judgment Date | 09 April 2008 |
| Neutral Citation | [2008] UKPC 24 |
| Court | Privy Council |
| Docket Number | Appeal No 50 of 2007 |
| Date | 09 April 2008 |
[2008] UKPC 24
Present at the hearing:-
Lord Hoffmann
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
Privy Council
[Delivered by Lord Brown of Eaton-under-Heywood]
The appellant is the Leader of the Opposition in Trinidad and Tobago, having previously been Prime Minister. On 18 September 2002 three summonses were issued charging him with three offences of knowingly making false declarations as to his financial affairs in the calendar years 1997, 1998 and 1999, contrary to section 27(1)(b) of the Integrity in Public Life Act 1987 (the 1987 Act). The declarations were made respectively on 9 April 1999, 23 December 1999 and 21 March 2001 and failed to disclose sums held jointly with his wife in an account at the Wimbledon Hill, London branch of the National Westminster Bank, sums respectively of £11,814 (for 1997), £37,033 (for 1998) and £110,752 (for 1999).
During those years, as a person in public life, the appellant was required by section 13 of the 1987 Act to file, annually by 31 May of the following year (section 15), a declaration of his financial affairs, including monies beneficially held abroad (section 17). Section 27(1) of the 1987 Act provided that:
"A person who … (b) knowingly makes a declaration that is false in some material particular … is guilty of an offence, and liable on summary conviction to a fine of $20,000 and to imprisonment for a term of two years, and where the offence involves a deliberate non-disclosure of property the Court may, in addition … (ii) where the property involved is situated outside Trinidad and Tobago, order that an amount equivalent to the value of the property … be paid by the person in public life to the State."
Following a hearing between 20-27 March 2006 the Chief Magistrate on 24 April 2006 convicted the appellant of all three offences and imposed the maximum sentences available: two years imprisonment with hard labour on each charge concurrently, a fine of $20,000 (with three years imprisonment in default) for each offence, and payment to the state of the equivalent of £159,599.
The appellant appealed against both conviction and sentence. The Court of Appeal (Warner, Archie and Weekes, JJA) heard the appeal from 22-29 January 2007. Further submissions were made on 19 March 2007. On 20 March the court gave a short oral judgment allowing the appeal, quashing the conviction on the ground of apparent bias and ordering a retrial before a different magistrate. Written reasons for the decision were given on 4 April 2007.
By leave of the Board granted on 4 October 2007 the appellant now appeals against the Court of Appeal's order for a retrial. He does so on three grounds. First, he contends that the prosecution was time-barred before ever he was charged with these offences; secondly, he says that the Court of Appeal should have stayed any further proceedings as an abuse of process (rather than ordered a retrial) because the Chief Magistrate, in convicting him, had been influenced by improper government pressure, a fundamental violation of the rule of law; thirdly, he submits that in any event it would be an abuse of process now to retry him given his age (74), his state of health, and the substantial costs which he would incur in defending himself afresh (largely irrecoverable, even were he to be acquitted).
The limitation point
Section 27(1) of the 1987 Act expressly creates a summary offence and section 33(2) of the Summary Courts Act 1918 (as amended) provides:
"In every case where no time is specially limited for making a complaint for a summary offence in the Act relating to such offence, the complaint shall be made within six months from the time when the matter of the complaint arose, and not after."
These are the provisions upon which the appellant principally relies in contending for a six-month rather than five-year time limit in respect of the offences charged against him. However, section 28 of the 1987 Act provides:
"No prosecution for an offence under this Act, other than an offence under section 12(2) [the disclosure of confidential information by members of the Integrity Commission or those working for it], may be instituted (a) without the written consent of the Director of Public Prosecutions; or (b) after five years from the date when the person in respect of whose declaration or financial affairs the alleged offence was committed, ceased to be a person in public life."
Consistently with section 28(b), moreover, section 23 makes provision for inquiries into "the accuracy or fullness" of declarations filed by those in public life and by subsection 4 provides:
"An inquiry may not be commenced after five years from the date when the person in respect of whose declaration the inquiry is being conducted ceased to be a person in public life."
It is Mr Clayton QC's somewhat surprising first submission that, section 28(b) of the 1987 Act notwithstanding, the time for making a complaint under that Act is not "specially limited" within the meaning of the Summary Courts Act. Rather he submits that section 28(b) prescribes what he calls a "longstop" when any potential liability for prosecution under the 1987 Act ceases. This, he argues, would not inevitably be otiose: it is possible to envisage an offence arising out of a section 23 inquiry set up towards the end of the specified five-year period in respect of which a five year longstop bar could take effect before the usual six month limitation period. The argument is absurdly far-fetched. The Board regards it as perfectly obvious that the time for making a complaint under the 1987 Act is "specially limited" by section 28(b) to five years after the putative defendant ceases to be a person in public life.
Mr Clayton's second argument for a six months time limit rests upon the repeal of the 1987 Act and its replacement by the Integrity in Public Life Act 2000 (as amended by the Integrity in Public Life (Amendment) Act 2000) with effect from 6 November 2000. Un-amended, the 2000 Act by section 21(5) had simply re-enacted section 28 of the 1987 Act. The amendment, however, deleted the five-year provision originally found in section 28(b) of the 1987 Act. Let it be assumed, therefore, that complaints under the 2000 Act as amended must be made within six months from when the subject matter of the complaint arises.
Mr Clayton argues that by virtue of section 29(2)(c) of the Interpretation Act 1962 the same six months time limit which would now apply to prosecutions under the 2000 Act must apply also to prosecutions under the 1987 Act. Section 29, under the shoulder heading "Effect of substituting provisions", provides so far as relevant:
"(2) Where a written law repeals or revokes a written law (in this subsection … called the 'old law') and substitutes another written law therefor by way of amendment, revision or consolidation … (c) all proceedings taken under the old law shall be prosecuted and continued under and in conformity with the written law so substituted, so far as consistently may be."
Mr Clayton recognises, as he must, that the offences alleged against the appellant are offences committed under the 1987 Act (the "old law" within the meaning of section 29(2)) but, he submits, section 29(2)(c) requires that they can only "be prosecuted … under and in conformity with" the 2000 Act (the "written law" which is now "substituted" for the 1987 Act).
The submission is a puzzling one. It affords no explanation as to why, given that a five-year limitation period applied to the prospective prosecution of these offences as at 6 November 2000 (when the 2000 Act came into force), suddenly, at that date, all offences under the earlier legislation (save where the complaint arose within the immediately preceding six months) became time barred. Nor is it readily apparent how the omission of the five-year time limit from the new legislation can properly be regarded as having "substitute[d]" a six month time limit for that which had earlier applied. But the core and in the Board's opinion insuperable difficulty in the appellant's path lies in the clear language of section 27 of the Interpretation Act under the more directly relevant shoulder heading "Effect of repeal". Section 27(1) provides:
"Where a written law repeals or revokes a written law, the repeal or revocation does not, except as in this section otherwise provided, and unless the contrary intention appears … (b) affect the previous operation of the written law so repealed or revoked, or anything duly done or suffered thereunder; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the written law so repealed or revoked; (d) affect any offence committed against the written law so repealed or revoked, or any penalty or forfeiture or punishment incurred in respect thereof; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as mentioned above, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the written law had not been repealed or revoked."
The short answer to Mr Clayton's second submission is that, unless a contrary intention appears, section 27 expressly allows "legal proceedings" to "be instituted" in respect of "any offence committed against the written law so repealed" "as if the written law has not been repealed". So far from any contrary intention appearing, moreover, the 2000 Act itself provides by section 44:
"Where anything has been commenced by or under...
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