Wheatley and Another v Commissioner of Police of the British Virgin Islands
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill |
| Judgment Date | 04 May 2006 |
| Neutral Citation | [2006] UKPC 24 |
| Court | Privy Council |
| Docket Number | Appeal No 15 of 2005 |
| Date | 04 May 2006 |
[2006] UKPC 24
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Clyde
Lord Carswell
Lord Mance
Privy Council
[Delivered by Lord Bingham of Cornhill]
The appellants were tried in the Magistrate's Court on four charges of theft contrary to section 209(a) of the Criminal Code (Act No 1 of 1997) of the Laws of the British Virgin Islands, four charges of conflict of interest on the part of a public officer contrary to section 82 of the Criminal Code and two charges of fraud and breach of trust. The Magistrate found no case to answer on the fraud and breach of trust charges, which give rise to no issue in this appeal. She acquitted the appellants on the theft charges but convicted them both on the charges under section 82. On their appeal against those convictions and the prosecution's appeal against the acquittals on the theft charges, the Court of Appeal of the British Virgin Islands (Redhead, Saunders and Alleyne JJA), in a judgment delivered by Saunders JA, upheld the section 82 convictions and entered convictions on the theft counts also. The appellants now challenge both those decisions. In argument before the Board a point was raised on the admissibility of evidence of entries in a banker's books which the Magistrate admitted but the Court of Appeal rejected.
By a written contract dated 7 July 1998 the first appellant, Mr Wheatley, was employed by the Government of the BVI as Financial Secretary. It was a full-time appointment and he was bound by all the orders and regulations applicable to the conduct of public officers. These orders and regulations forbade an officer from engaging in any private activity which might conflict with his official duties or responsibilities, or which might place him or give the appearance of placing him in a position to use his official position for his private benefit. An officer who formed the opinion that any private activity in which he was engaged or in which he had a private pecuniary interest was likely to offend against this prohibition was obliged to declare it fully to the Governor and either discontinue the activity or divest himself of the interest or undertake not to pursue the activity save on conditions laid down by the Governor. No government contract was to be let to a public officer in the contracting department or to any partnership or company of which he was a member or director unless the interest had been disclosed and permission given to proceed. If an officer considered that he was being required to act illegally, improperly or unethically he was obliged to report the matter. One of the duties of the first appellant was to administer, and act as accounting officer for, certain public works projects.
After a detailed review of the evidence the Magistrate found that the first appellant had a direct interest and played a very prominent role in, and acted as a management consultant to, two business enterprises known as P&W Heavy Equipment and Accurate Construction. It is not clear whether these were partnerships or limited companies, but they were largely owned by Mr Penn, the second appellant. The Court of Appeal, in paragraph 25 of its judgment, upheld the Magistrate's decision on these points, referring to the "staggering amount of evidence" which supported them. There has been, and could have been, no challenge to these conclusions on this appeal. On 10 January 2002, when renewal of his employment contract was under consideration, the first appellant disclosed a number of his private interests to the Deputy Governor, but he did not then or at any time disclose his interest in P & W and Accurate.
In about December 2000 the second appellant built a substantial wall at Long Look, Tortola, to protect the property of Alice Thomas against erosion which might undermine the foundations and imperil the stability of the building. A year later, on 15-16 December 2001, there was heavy rain and this wall fell over "more or less in one piece". There was a need for urgent action to protect the building and the safety of the occupants. On 17 December 2001 Dr Pickering, the Legislative Council representative for the district, spoke to the Minister for Finance and Chief Minister, in the presence of the first appellant, and the Minister agreed that the wall should be replaced subject to a quotation being submitted and approved. Under cover of a letter dated 18 December Dr Pickering forwarded estimates for replacing the wall from P & W and Accurate. On 19 December 2001 two contracts were made, described in official parlance as "petty contracts" because the consideration was less than $60,000. The first contract, No 43/2001, was between the Government and Accurate, in the sum of $58,073.12, for the construction of a retaining wall of specified dimensions. The second, No 44/2001, was between the Government and P&W, in the sum of $14,247.44, for "Heavy Equipment and Trucking" for a retaining wall of different dimensions. In each case the first appellant signed the contract on behalf of the Government and the second appellant on behalf of the contractor. Thereafter the first appellant and his staff acting at his direction signed the requisite purchase orders and payment vouchers and approvals to give effect to the carrying out and completion of the contracts. The wall was built and the contractors were paid. There was clear evidence, derived from the records of Accurate, that cheques totalling $9,400 were paid by Accurate to the first appellant's wholly-owned consulting business in relation to this transaction.
Section 82 of the Criminal Code
Section 82 of the Criminal Code provides:
"Any person who, being employed in the public service, and being charged by virtue of his employment with any judicial or administrative duties respecting property of a special character, or respecting the carrying on of any manufacture, trade or business of a special character, and having acquired or holding, directly or indirectly, a private interest in such property, manufacture, trade or business, discharges any such duties with respect to the property, manufacture, trade, or business in which he has such interest or with respect to the conduct of any person in relation thereto, commits an offence and is liable on conviction to imprisonment for a term not exceeding one year."
In the Table of Offences and Penalties in Schedule 1 to the Code, the nature of the section 82 offence is summarised as "Public officer exercising powers in respect of matter in which he has private interest". The object of the section is plainly to penalise public servants who discharge public duties when subject to a private interest of their own in relation to the subject matter of their public duties. As Lindley LJ said of an earlier English enactment to like effect ( Nutton v Wilson (1889) 22 QBD 744, 748), "The object obviously was to prevent the conflict between interest and duty that might otherwise inevitably arise". It is not an ingredient of the offence that the public should have suffered detriment as a result of the conflict. Nor is it an ingredient of the offence that the public servant should have acted dishonestly, fraudulently or maliciously. It will be enough that he acted knowingly. He need not be shown to have profited directly or indirectly from the transaction because of his private interest, but in most cases (as in this) he is no doubt likely to have done so. The Code provides no defence to a charge under the section when the existence of the conflict is proved. The English authorities illustrate the strictness with which comparable provisions have been applied: see Nutton v Wilson, above; England v Inglis [1920] 2 KB 636; Rands v Oldroyd [1959] 1 QB 204. Such strictness is necessary to ensure that public powers are exercised to serve exclusively public purposes.
The first charge against the appellants under section 82 was to this effect:
" Statement of Offence
Exercising Power in Respect of a Matter in which he has a Private Interest, contrary to section 82 of the Criminal Code (Act No 1 of 1997) of the Laws of the Virgin Islands.
Particulars of Offence
Ludwis Allen Wheatley on 19 th December, 2001 being a person employed in the public service of the Government of the Virgin Islands, namely Financial Secretary, and charged by virtue thereof with administrative duties regarding property of a special character namely public funds for public infrastructure construction and/or business of a special character, namely public infrastructure construction, to wit: contract number 43 of 2001 between the Ministry of Finance and Accurate Construction, for the construction of a retaining wall at Long Look, Tortola and holding a direct or indirect private interest in the said property or business by way of his interest in Accurate Construction, discharged in his public duties with respect to the said property or business or with respect to the conduct of a person in relation thereto in that he
(i) signed a purchase order for payment of the sum of fifty eight thousand and seventy three dollars and twelve cents (58,073.12) in favour of Accurate Construction under the said contract.
(ii) Signed a payment approval form and voucher authorizing payment of the sum of twenty nine thousand and thirty six dollars and fifty six cents representing part payment of the entire sum due to Accurate Construction under the said contract.
And Wesley Penn aided and abetted the commission of the said offence."
The second charge was to the same effect, save that it omitted reference to the purchase order...
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