Fritz Pinnock v Financial Investigations Division
| Jurisdiction | Jamaica |
| Judge | Dunbar-Green JA (AG),V Harris JA,Sinclair-Haynes JA |
| Judgment Date | 26 November 2021 |
| Neutral Citation | JM 2021 CA 132 |
| Docket Number | APPLICATION NOS 43 & 44/2020 |
| Year | 2021 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA App 29
IN THE COURT OF APPEAL
The Hon Mrs Justice Sinclair-Haynes JA
The Hon Mrs Justice V Harris JA
The Hon Mrs Justice Dunbar-Green JA (AG)
APPLICATION NOS 43 & 44/2020
MOTION NO COA2020MT0004
and
Hugh Wildman instructed by Hugh Wildman & Company for the applicants
Richard Small, Mrs Shawn Wilkinson and Ms Cheryl-Lee Bolton for the respondent
On 8 March 2021, two applications were heard by the court. The first, was filed on 9 April 2020 on behalf of Messrs Fritz Pinnock and Ruel Reid, by way of notice of motion for conditional leave to appeal to Her Majesty in Council. The second, is the respondent's, which was filed on 2 February 2021, to dismiss the applicants' notice of motion, for want of prosecution and/or abuse of the due process of the court.
Messrs Fritz Pinnock and Ruel Reid, both outstanding educators, were arrested and charged for breaches of the Proceeds of Crime Act, the Corruption Prevention Act and for a number of common law offences. Their arrest and the charges instituted against them, were the result of a joint investigation by the Financial Investigations Division (‘FID’), the Major Organised Crime and Anti-Corruption Agency (‘MOCA’) and the Counter Terrorism and Organised Crime Division (‘CTOC’). The matter was consequently placed before the Kingston and Saint Andrew Parish Court (Criminal Division).
Holding steadfastly to the view that the officers who effected the arrests and instituted the charges, lacked the requisite authority to do so, thus rendering the applicants' arrests and charge unlawful, Mr Wildman, on behalf of the applicants, sought to invoke the jurisdiction of the Supreme Court by way of an application for leave to apply for judicial review of the FID officers' actions in arresting and charging the applicants.
The applicants' first application for leave to apply for judicial review of the FID's actions was heard by Sykes CJ before whom they sought several declarations and the following orders:
-
(a) an order prohibiting the FID from taking steps to seek and obtain a fiat from the DPP to prosecute both applicants;
-
(b) an order of certiorari to quash the charges brought against them; and
-
(c) a stay of the criminal proceedings.
Sykes CJ, in his usual scholarly approach, examined the FID legislation and extensively referred to relevant portions. He agreed with learned counsel Mr Wildman's submission that the Financial Investigations Division Act (‘the Act’), gave no authority or power to the authorised officers of FID to arrest and charge the applicants. The learned Chief Justice held however that, in so far as the authorised officers of FID are members of the Jamaica Constablurary Force, their powers of arrests were derived from the Jamaica Constabulary Force Act. This he said, meant that thearrest and charge of the applicants was not done by FID but by members of the Jamaica Constabulary Force acting in that capacity. He held however, that to the extent the officers may have exceeded their powers, there was another remedy available to the applicants which they ought to have first pursued and refused the application for leave to apply for judicial review. He said:
“[81] The court is of the view that FIDA does not authorise FID to arrest and charge anyone or authorise FIDA [sic] to initiate charges and initiate an arrest. What it can do is investigate. When investigating it can use certain powers under FIDA. FIDA enables FID to gain access to information and use investigative techniques that are not available to the JCF at large. There is no power under the Constabulary Force Act for the ordinary JCF member to obtain a production order, restraint order or account monitoring order under FIDA. These are exceptional powers conferred by statute on specific statutory functionaries who can only use those powers in the circumstances and the manner prescribed by the respective statutes. For persons other than the statutory functionary to exercise those powers, those persons need to enter the kingdom by the narrow statutory gateway labelled authorized officers.
[82] This court is of the view that the police officers in this case who arrested and charged the applicants were never designated under section 2 of FIDA. Any power of arrest and charge that they did could only be by virtue of the JCF powers found under the CFA.
[83] Consequently, it was not FID that arrested and charged the applicants but JCF officers in their capacity as JCF officers. That still leaves open the question of whether the JCF officers utilised any power under FIDA when they were not authorised to do. If yes, that might raise admissibility issues which can be addressed during the criminal trial.” (Emphasis added)
Displeased with the latter ruling, the applicants renewed their application before the Full Court comprising Batts J, Stamp J and Jackson-Haisley J. On 2 March 2020 the Full Court unanimously refused the renewed application.
Regarding the FID's power to arrest and charge, Jackson-Haisley J said:
“[89] Throughout the provisions of FIDA there is nothing that speaks expressly to charging anyone for any offence. Does this mean that the power of authorized officers to charge is non-existent? If the authorized officers are not empowered by any other means to charge then certainly they would not be able to do so by virtue of being authorized officers. However, if the authorized officers already have the power to charge then, it could not be suspended simply by virtue of an assignment to this Division. Although the main function of this Division is to investigate, when one looks at the intention of the legislation by the framers it must mean that any powers of arrest and charge must be complementary to the powers of investigation. In my view, the suspension of the powers of a JCF officer would be an important provision and with the specificity of FIDA, would not be left for mere inference and would be expressly stated.
[90] There is no evidence or law presented to the Court that would lead to the finding that the powers of arrest of the officers were suspended. The fact that these officers are authorized officers under FIDA could not without more mean that they can act only under FIDA. They still retain their powers as JCF officers. In the absence of any evidence or law to support the suggestion that the officers' JCF powers were suspended, that suggestion made by Mr. Wildman is at best speculative.
[91] …
[92] It is my view that throughout the assignment of the officers as designated officers of the FID, they exercise a dual function. They have powers under FIDA and so could carry out investigations under FIDA, take out warrants under FIDA but it doesn't mean that they charged under FIDA. I do not agree that any charges effected by them must have been done under FIDA. They still maintain their powers under the JCF Act to arrest and charge and this is the power they utilized.” (Emphasis added)
The learned judge continued at para. [98] as follows:
“[98] I am therefore of the view that the designated officers acted within their JCF powers when they arrested and charged the Applicants. I agree with counsel Mr. Small that designated officers retain their full common law and statutory authority as police officers to arrest and charge. The police officers take with them all their powers and authority as police officers into their assignment to work at the FID. I agree that there is nothing in the FIDA that prohibits them from carrying out their normal functions as police officers. I am therefore of the view that it was these officers who effected the charges in their own right and that it was not the FID that charged the Applicants.”
The alternative remedy to which both Sykes CJ and the Full Court referred was, a trial by the Parish Court Judge, during which, Sykes CJ opined, an objection could be taken that the officers exceeded their powers, with which view the Full Court concurred.
Also aggrieved by the Full Court's decision, the applicants applied to the Court of Appeal for leave to appeal the decision of the Full Court and for a stay of the criminal proceedings in the Parish Court.
The matter was heard by the Court of Appeal on 19 March 2020. Having heard the parties, on 3 April 2020, the court refused the application for leave to appeal, for the reason that there was no basis on which the finding of the learned Chief Justice and Full Court, that there was an alternative remedy available to the applicants, could be faulted. The court also refused the application for a stay of the criminal proceedings in the Parish Court.
The Court of Appeal did not address the issue as to whether the FID had the power to arrest and charge the applicants. However, on the issue of costs, Phillips JA expressed the following view of the applicants' conduct:
“[47] ….in my view, the circumstances of this case would warrant an order for costs against the applicants. There has been persistence in seeking leave to obtain judicial review, despite consistent rulings of the courts that an alternative remedy exists in the Parish Court, and also in the face of an application by the applicants to obtain similar relief before that court, where such relief ought initially to have been pursued, and where a date to determine the issues joined has now been set. Yet, the applicants have nonetheless pursued this application before this court, presumably ‘ hedging their bets’, so to speak, which this court ought not to encourage. Therefore, in my view, costs ought to be awarded to FID to be taxed if not agreed.” (Emphasis added)
Having refused...
To continue reading
Request your trial