DPP v Thwaites and Others

• Jurisdiction: Jamaica
• Judge: Panton, P,Harris, JA,Phillips, JA
• Judgment Date: 31 July 2012
• Neutral Citation: JM 2012 CA 75
• Docket Number: SUPREME COURT CIVIL APPEAL NO 13/2009
• Court: Court of Appeal (Jamaica)
• Date: 31 July 2012

[2012] JMCA Civ 38

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Mrs Justice Harris JA

The Hon Miss Justice Phillips JA

SUPREME COURT CIVIL APPEAL NO 13/2009

CONSOLIDATED WITH SUPREME COURT CIVIL APPEAL NO 14 /2009

Between:

The Director of Public Prosecutions

Appellant

and

Mark Thwaites

1st Respondent

and

James Morrison

2nd Respondent

and

Catherine Parke Thwaites

3rd Respondent

and

Debbie Hyde

4th Respondent

Between:

The Attorney General

Appellant

and

Mark Thwaites

1st Respondent

and

James Morrison

2nd Respondent

and

Catherine Parke Thwaites

3rd Respondent

and

Debbie Hyde

4th Respondent

Jeremy Taylor and Mrs Annmarie Feurtado-Richards for the Director of Public Prosecutions

Miss Stephanie Orr and Miss Tova Hamilton for the Attorney General

Winston Spaulding QC and Garth McBean for the 1 ^st and 3 ^rd respondents

Frank Phipps QC and Miss Katherine Phipps for the 2 ^nd respondent

Patrick Atkinson and Miss Deborah Martin for the 4 ^th respondent

Miss Pauline McKenzie watching proceedings for the Financial Services Commission

JUDICIAL REVIEW - Declarations - Order for specific declarations - whether Financial Services Commission clothed with statutory authority to act as it did - Whether actions of FSC could be later validated and confirmed by legislation - Definition of "financial services" - Financial Services Commission Act, s. 2

Panton, P

1 I have read the draft of the judgment that has been written by my learned sister, Phillips JA. In my view, she has dealt extensively with all the issues that have been raised and discussed by the parties in these appeals. I fully agree with her reasoning and conclusion and have nothing to add.

Harris, JA

2 I too have read in draft the judgment of Phillips JA. I agree with her reasoning and conclusion and have nothing to add.

Phillips, JA

3 These are consolidated appeals arising from the decision of the full court delivered on 18 December 2008 granting specific declarations on consolidated applications by the respondents for judicial review of the decision of the Director of Public Prosecutions (the DPP) to charge them with certain criminal offences. The issues in the case relate, inter alia, to whether the offences with which the respondents were charged were offences at the material time, and whether the Financial Services Commission was clothed with the statutory authority to act as it did, and, if not, whether any actions undertaken by it could be validated and confirmed subsequently by legislation.

4 In the court below, the respondents filed fixed date claim forms requesting more or less similar reliefs, accompanied by affidavits deposed by them in support of their respective claims. The declarations prayed for read as follows:

‘1. A Declaration that paragraph (a) of the definition of “financial services” in Section 2 of the Financial Services Commission Act and the provisions of the Fourth Schedule of the Financial Services Commission Act which were purportedly brought in effect as law by the Financial Services Commission Act 2001 (Appointed Day) (Insurance Provisions) Notice 2005 are in breach of the Applicant's rights under Section 20 (7) of the Constitution of Jamaica and null and void on the ground that in respect of the Applicant and the offences with which he is charged those provisions rendered acts which did not constitute an offence in December 2004 and January 2005, a criminal offence as of the 4 ^th March 2005, thereby having a retroactive effect in relation to criminal offences.

2. A Declaration that the power delegated to the Minister of Finance by Section 1 of the Financial Services Commission Act passed by Parliament and assented to by the Governor General on the 3 ^rd May 2001 was exercised and spent when the Minister brought into operation provisions of the Financial Services Commission Act by the Financial Services Commission Act 2001 (Appointed Day) Notice published in the Jamaica Gazette Supplement, Proclamation Rules and Regulations dated Monday the 30 ^th July 2001.

3. A Declaration that the Minister had no power to bring into operation the provisions of the Financial Services Commission Act relating to the insurance industry when he purported to bring same into effect by the Financial Services Commission Act 2001 (Appointed Day) Notice 2005.

4. Further or alternatively, a Declaration that the provisions of the Financial Services Commission (Insurance Services) Validation and Indemnity Act, which was purportedly brought into operation on the 11 ^th day of August 2006 are contrary to Section 20(7) of the Constitution and therefore unconstitutional, null and void, to the extent that it purportedly renders retroactively criminal acts allegedly done by the applicant.

5. An order that the criminal proceedings instituted against the Applicant by information … in the Resident Magistrate's Court, for the Corporate Area held at Half Way Tree be discontinued by the 1 ^st Respondent.’

5 The affidavits in support of the claims set out, inter alia, the particular offences with which the respondents were charged, and the bases for the claims that the charges were unconstitutional, null and void.

Re: Mark Thwaites, that:

(i) He was arrested and charged on six informations, on 12 July 2005. The second set of three informations laid on 12 July 2005 replaced the first set, and charged him with two offences, which were said to have been committed between 17 December 2004 and 21 January 2005. He was charged for (a) breach of section 147 (1)(a) of the Insurance Act, for failing to comply with directions of the Financial Services Commission and (b) breach of section 147(1)(c)(ii) for supplying information to the Financial Services Commission which was false in a material particular and in purported compliance with the directions of the Financial Services Commission to provide proof of the injection of capital into Dyoll Insurance Company Limited.

Re: James Morrison, that:

(ii) He was arrested and charged on 12 October 2005 for breach of section 147 (1)(a) of the Insurance Act, for failing to comply with the directions of the Financial Services Commission to provide proof of the injection of $150,000,000.00 capital in the Dyoll Insurance Company as authorized by sections 46 and 53 of the Insurance Act and given by the Financial Services Commission on diverse days between 17 December 2004 and 21 January 2005.

Re: Catherine Parke-Thwaites, that:

(iii) She was arrested and charged on 13 October 2005 for breach of section 147(1)(a) of the Insurance Act for failing to comply with the directions as set out at (ii) above given on the said diverse days between 17 December 2004 and 21 January 2005.

Re: Debbie Ann Hyde, that:

(iv) She was arrested and charged on 25 January 2006 for breaches of section 147(ii)(a) and 147(1)(c) of the Insurance Act for offences committed on 17 December 2004 and 21 January 2005.

All respondents claimed that the Financial Services Commission at the time of the commission of the alleged offences, had no authority in respect of insurance services.

6 The full court granted the orders at 1 and 4 in paragraph [4] above, with no mention of any award as of costs, and additionally in respect of the 3 ^rd and 4 ^th respondents, declared somewhat similarly to the effect that:

‘… the Applicant is being charged with offences ex post facto as the Information charging her alleges act committed in December 2004 and January 2005, when those acts alleged against her did not become criminal offences until 4 ^th March 2005.’

7 An application for an award of damages on behalf of the 3 ^rd respondent was denied.

8 This matter will be determined by the true and proper interpretation to be accorded the relevant statutes and subsequent instruments relative to the same.

1. The Financial Services Commission Act

• a. The Financial Services Commission Act was passed on 3 May 2001. Section 1 provides:

  ‘This Act may be cited as the Financial Services Commission Act, 2001 and shall come into operation on a day to be appointed by the Minister by notice published in the Gazette.’

• b. On 30 July 2001, the Minister of Finance and Planning issued the Financial Services Commission Act, 2001 (Appointed Day) Notice. Section 2 of the Appointed Day Notice provides:

  ‘The 2 ^nd day of August 2001 is hereby appointed as the day on which the provisions of the Financial Services Commission Act, 2001, other than:

  • (a) paragraph of the definition of “financial services” in section 2; and

  • (b) the provisions of the Fourth Schedule to the Act in respect to the Insurance Act' shall come into operation.’

• c. Section 2 of the Financial Services Commission Act states:

  ‘'financial services' means services provided or offered in connection with

  (a) insurance; …

  “prescribed financial institution” means an institution or person offering or providing financial services to the public.’

• d. The Financial Services Commission is a body corporate established under section 3 of the Financial Services Commission Act.

• e. Section 6 of the Financial Services Commission Act states:

  ‘6 — (1) For the purpose of protecting customers of financial services, the Commission shall -

  (a) supervise and regulate prescribed financial institutions;

  (b) ……… (c)……. (d)…… (e)……….’

• f. Section 8(1)(b) of the Financial Services Commission Act provides:

  ‘(1) Where the Commission believes that any of the conditions specified in paragraph 1, 2 or 3 of Part A of the Third Schedule exists in relation to a prescribed financial institution, the Commission may —

  • (a) …

  • (b) give directions to the institution under this section; …’

2. The Insurance Act

• a. On 21 December 2001 the Insurance Act came into effect pursuant to the Insurance Act, 2001...