Steve Ferguson v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sumption |
| Judgment Date | 25 January 2016 |
| Neutral Citation | [2016] UKPC 2 |
| Date | 25 January 2016 |
| Docket Number | Appeal Nos 0014, 0015 and 0016 of 2015 |
| Court | Privy Council |
[2016] UKPC 2
Lord Neuberger
Lord Mance
Lord Sumption
Lord Carnwath
Lord Hughes
Appeal Nos 0014, 0015 and 0016 of 2015
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellants (1 st, 3 rd, 4 th and 5 th)
Michael J Beloff QC Fyard Hosein SC Fyard Hosein SC Rishi Dass Annette Mamchan James Segan
(Instructed by Peters & Peters Solicitors LLP)
Appellant (2 nd)
Michael Fordham QC Sophia Chote SC Vijai Deonarine Nesha Abiraj
(instructing attorney) (Instructed by Peters & Peters Solicitors LLP)
Respondent (Attorney General of Trinidad and Tobago)
Peter Knox QC Tom Richards
(Instructed by Charles Russell Speechlys)
Interested Party (Director of Public Prosecutions)
Ian L Benjamin Samson Wong Amirah Rahaman Nalini Jagnarine
(Instructed by Charles Russell Speechlys)
Appellants:
(1) Steve Ferguson
(2) Ameer Edoo
(3) Maritime Life (Caribbean) Limited
(4) Maritime General Insurance Company Limited
(5) Fidelity Finance and Leasing Company Limited
Heard on 19, 20 and 21 October 2015
This appeal arises out of an ill-fated attempt to introduce a statutory limitation period for criminal prosecutions in Trinidad and Tobago. The relevant statutory provision was in force for only two weeks before it was retrospectively repealed by a fresh Act of Parliament. These proceedings have been brought by a number of persons who would have been entitled to the benefit of limitation but for the repeal. Their case, in summary, is that the repeal was unconstitutional because it was a retrospective abrogation of vested rights, a legislative intrusion on the judicial function and directed specifically against the defendants in particular criminal proceedings. They also say that in the light of the prosecutor's involvement in promoting the repeal, the continuance of the prosecution would be an abuse of process.
The Administration of Justice (Indictable Proceedings) Act 2011 (the "Principal Act"), received Presidential assent on 16 December 2011. Section 34(2) of that Act provided (so far as relevant) that once ten years had passed from the date when an offence was alleged to have been committed, no proceedings were to be instituted for that offence and no trial for that offence was to be commenced. Under section 34(3), where criminal proceedings had been instituted or an accused had been committed for trial, whether before or after the commencement of the Act,
"… a judge shall, on an application by the accused, discharge the accused and record a verdict of not guilty if the offence is alleged to have been committed on a date that is ten years or more before the date of the application."
There were exceptions for persons accused of offences of violence, sexual offences and drug trafficking offences specified in Schedule 6 of the Act and for cases in which the defendant had evaded justice. Section 1(2) of the Act provided that it was to come into force on a date fixed by the President by proclamation.
It had originally been intended to bring the Principal Act into force on 2 January 2013. However, in August 2012, the Minister of Justice proposed to advance the timetable, bringing certain sections into force earlier, including section 34. The Cabinet approved that proposal, and as a result a proclamation was published on 28 August bringing section 34 into force with effect from 31 August.
At that time there were at least 47 current prosecutions at various stages of progress towards trial for offences more than ten years old. These included two prosecutions known as "Piarco 1" and "Piarco 2". These cases had aroused strong feelings in Trinidad and Tobago for some years. They arose out of serious allegations of corruption in connection with the construction of Piarco International Airport in Trinidad. In summary, what was alleged was that the defendants had conspired to defraud the state of more than TT$1 billion by rigging the award of the construction contracts. The defendants in Piarco 1 included Mr Steve Ferguson, the first appellant, and two companies, the fourth and fifth appellants. They had been charged in March 2002 with common law conspiracy to defraud and offences under the Proceeds of Crime Act, the Prevention of Corruption Act and the Larceny Act, said to have been committed between 1996 and 2000. The defendants in Piarco 2 include all the present appellants. They had been charged in May 2004 with similar offences, said to have been committed between 1995 and 2001. Other defendants not party to the present appeals include the then Minister of Works and Transport, a senior civil servant in his ministry and two chairmen of the Airports Authority. The Piarco cases are said by the DPP to be the largest complex fraud and corruption cases ever prosecuted in the Caribbean Commonwealth.
The committal proceedings were very long drawn-out, partly because of the complexity of the facts and partly because they involved a great deal of oral and documentary evidence and frequent adjournments. Those in Piarco 2 have still not been concluded. In 2006, while they were in progress, the United States had begun proceedings for the extradition of Mr Ferguson and one of his co-defendants, Mr Galbaransingh, to face trial in the United States on charges of money laundering and conspiracy to commit wire fraud arising out of the alleged manipulation of the bid process for the construction of the airport. The Attorney General ordered their extradition in October 2010, but his order was quashed by the High Court (Boodoosingh J) 13 months later, on the ground that the underlying allegations were substantially the same as those made in the prosecutions in Trinidad and Tobago and that it was in the public interest that they should be tried there.
On 6 September 2012, a week after section 34 of the Principal Act had come into force, one of the appellants' co-defendants, Mr Maharaj, applied to the High Court for a discharge under section 34(3). As it happened, on the following day, there was a hearing before the magistrate in the ongoing committal proceedings in Piarco 2. At the hearing the DPP drew the magistrate's attention to Mr Maharaj's application and asked for an adjournment of the committal proceedings for a week so that (in the words of his affidavit) he could "properly consider how the prosecution of Piarco 2 might progress in the light of section 34". The application was not opposed, and the magistrate adjourned until 14 September. Between 7 and 12 September, all of the present appellants lodged applications in the High Court under section 34(3). During the period of the adjournment, further applications were made under section 34(3), bringing the total number of such applications to about 42.
Once it was appreciated that the effect of bringing section 34 of the Act of 2011 into force was to entitle the Piarco defendants to a discharge without trial, there was a major public outcry. On 10 September the DPP wrote to the Attorney General complaining about the decision to bring section 34 into force. He said that he had not been consulted about it and was concerned that its effect was to prevent a trial of the Piarco defendants. He summarised the history of the Piarco prosecutions, the scale of the preparations for trial and the failed US extradition proceedings against Mr Ferguson and Mr Galbaransingh. He pointed out that one of the American defendants, a Mr Birk, had made a confession and would have pleaded guilty, giving evidence against the other defendants at the trial. He concluded:
"I am sure that you would be as concerned as I am that the public would lose confidence in the criminal justice system if the proceedings against these defendants are summarily brought to an end in this way rather than by a trial in the Supreme Court of Judicature of Trinidad and Tobago, about which you expressed such confidence in December 2011.
I would invite you to consider taking the following courses of action as a matter of extreme urgency to redeem what clearly must be the unintended consequences of the Proclamation of section 34 of the Act by the President on Independence Day:
1. Repeal section 34 of the Act with retroactive effect.
2. Alternatively,
(a) Bring into operation section 27(4) of the Act by proclamation.
(b) By Ministerial Order amend Schedule 6 to include the types of offences charged in Piarco No 1 and No 2."
Section 27(4) empowered the minister to amend Schedule 6 by statutory instrument.
On 11 September 2012, the DPP issued a press release in which he criticised section 34 and the timing of the proclamation bringing it into force. He complained that he had had only limited involvement in the decision to introduce section 34 into the Act and none at all in the decision to bring it into force. He also referred to the difficult position in which he had been placed in view of the ground on which the US extradition application had been rejected. He concluded:
"Hopefully the situation can still be retrieved and the ramparts of the state's right to prosecute these matters remain intact as they properly should."
On the same day, the Attorney General called the Prime Minister and told her that in his opinion section 34 should be repealed urgently. There were further discussions on that day between the Attorney General and the DPP, in the course of which the DPP urged him that any repeal would have to be retrospective if it was to affect the Piarco defendants. On 12 September, the DPP sent the Attorney General a draft bill to effect the repeal. On the same day,...
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