Fritz Pinnock v Ruel Reid

• Jurisdiction: Jamaica
• Judge: Sykes CJ
• Judgment Date: 24 December 2019
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU2019CV04098
• Date: 24 December 2019

[2019] JMSC Civ 257

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. SU2019CV04098

Between

Fritz Pinnock

First Applicant

and

Ruel Reid

Second Applicant

and

Financial Investigations Division

Respondent

Hugh Wildman, Faith Gordon and Lois Pinnock for the applicants

Richard Small and Cheryl-Lee Bolton for the respondent

Judicial Review — Application for leave to apply for judicial review — Financial Investigations Divisions Act — Section 2, 3, 4, 5, 8, 9, 10, 15, 17, 19, 20, 28, 31 of the Financial Investigative Divisions Act - Authorised person under section 2

Sykes CJ

The application

1 This is an application for leave to apply for judicial review by Professor Fritz Pinnock and Mr Ruel Reid who have been arrested and charged with a number of offences. Both gentlemen assert that they were arrested and charged by the Financial Investigations Division (‘FID’) which was established by section 4 of the Financial Investigations Division Act (‘FIDA’). The applicants say that the FID does not have the power to arrest and charge anyone. They say that by arresting both applicants, the FID acted outside of its statutory powers and therefore what it did was nullity. This position led the applicants to seek leave for judicial review. The applicants are seeking declarations. The declarations sought are:

(1) under FIDA the FID

(i) is a purely investigative body;

(ii) does not have the power to charge the applicants with any offence arising from any investigation it conducts;

(iii) does not have the power to seek and obtain a fiat from the Director of Public Prosecutions (‘DPP’);

(iv) the police officers designated by the Commissioner of Police (‘CP’) to be members of the FID are not authorised under FIDA to institute charges;

(v) the charges instituted by the FID are illegal, null and void and of no effect;

(vi) the proceeding instituted by the FID before His Honour Mr Vaughn Smith, Senior Judge of the Parish Court are illegal, null and void and of no effect.

2 The applicants are also seeking:

(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;

(c) a stay of proceedings.

3 Mr Robin Sykes, Chief Technical Director (‘CTD’) of the FID, and Inspector Brenton Williams, Director of the Constabulary Financial Unit (‘CFU’) within the Counter Terrorism Organised Crime Investigation Branch (‘C-TOC’) of the Jamaica Constabulary Force (‘JCF’), say that is it not accurate to say that (a) charges were instituted by the FID and (b) the applicants were arrested and charged by the FID. The arrest and charge, it is said, were instituted by members of JCF using their powers under the Constabulary Force Act (‘CFA’) ‘and other related legal instruments.’

4 The court wishes to observe that it is not appropriate for a state agency to decline to state in full the legal power that it claims to have to do whatever it claims to have been lawfully done. This is especially so when the challenge to its power involves the freedom of the person. The court does not understand what is meant by ‘other related legal instruments.’ While the context is different the sentiment behind the regret expressed by Lord Walker in Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment of Belize and another (Practice Noted) [2003] 1 WLR 2839 [15], [28] regarding non-disclosure by the state is of value. The court ought to have been told by Mr Robin Sykes and Inspector Williams what were these ‘other related legal instruments’ under which it is alleged that both applicants were arrested.

5 They say that the applicants were arrested by the police using powers given to them in their capacity as police officers. If this turns out to be the case, then the application must be dismissed because the factual foundation for judicial review is not present and so there would be no need to determine whether the legal test has been satisfied.

6 Mr Richard Small, for the respondent, says that the assertion of Mr Sykes and the Inspector that the applicants were arrested by JCF members acting as JCF members under the CFA has not been refuted by the applicants. The court observes that this is the very point in issue, namely, whether the applicants were arrested by persons acting under the FIDA or under other statutory powers and so a mere assertion one way or the other raises factual questions. Fortunately, in this case, the factual issue can be resolved based on the material provided and the conclusions arrived at by the court. There is no need to determine the credibility of any of the deponents.

7 Mr Wildman asserts that the powers under FIDA are not available to any member of the JCF at large. Such powers can only be exercise by a limited class of police officers. This limited class comprises those who are designated under section 2 of FIDA as authorized officers. One of the major premises of Mr Wildman's submission is that no JCF member can use the powers of FIDA unless he or she is designated as an authorized officer under section 2. Learned counsel also states that an inference to be drawn from this major premise is that once under FIDA the police officers cannot utilise any power they have as JCF members in respect of investigations under FIDA. According to counsel, the police officers who arrested and charged the applicants were authorized officers and in that capacity had no power to arrest and charge under FIDA. Any arrest and charge by these police officers are nullities.

8 How did Mr Wildman get to this conclusion? Learned counsel examined a number of provisions of FIDA and submitted that such an examination yielded the major premises just stated. The court turns to the provisions of FIDA to see if they support Mr Wildman's propositions and conclusion.

The statute

9 Mr Wildman referred the court to sections 2, 3, 5, 16, 17 (1), (2), (3), (7), (9), 18, 24 (5), (6), 29 (5), 30, 31 (1), (2), (2) (c), 31 (3), (6), (6) (a), (b), (c), (8), 32 (1), (a), (b), (c) and (d).

10 Section 4 establishes ‘a department of Government to be known as the [FID].’ Section 3 informs that the object of FIDA is to establish a department ‘with sufficient independence and authority to effectively deal with the multidimensional and complex problem of financial crime and confer upon it the responsibility to -

(a) investigate all categories of financial crime;

(b) collect information and maintain intelligence data-bases on financial crimes;

(c) maintain an arm's length relationship with law enforcement agencies and other authorities of Jamaica … with which it is required to share information;

(d) exercise its functions with due regard for the rights of citizens.’

11 Section 3 does not indicate what the functions of FID are. That is found in section 5.

12 Section 5 says:

(1) Subject to the provisions of this Act, the Division shall

(a) advise the Minister on matters of policy relating to the detection, prevention, prevention and control of financial crimes;

(b) collect, request, receive, process, analyse and interpret -

(i) information relating to financial crimes; and

(ii) transaction reports and any other reports made to or received by the Division under this Act or any other enactment;

(c) subject to section n10, take such action as it considers appropriate in relation to information and reports referred to in paragraph (b);

(d) where the [CTD] considers it necessary, to disseminate information and reports referred to in paragraph (b) to -

(i) the competent authority;

(ii) the Attorney General, the Commissioner of Police, any of the Revenue Commissioners under the Revenue Administration Act, the Commission for the Prevention of Corruption … or the Director of Public Prosecutions;

(iii) any other body designated by the Minister for the purposes of this paragraph;

(e) investigate, or cause to be investigated -

(i) at the request of the Director of Public Prosecutions, the Commissioner of Police or any other public body; or

(ii) on the initiative of the [CTD]

any person who is reasonably suspected of being involved in the commission of any financial crime;

(f) promote public awareness and understanding of financial crimes, and the importance of their elimination from the society;

(g) formulate and implement management guidelines and policies and an annual plan approved by the Minister for the control and prevention of financial crimes;

(h) establish a database and databank for the purpose of detecting and monitoring financial crimes;

(i) engage in the compilation and publication of statistics on -

(i) reports that made to it under this Act or any other enactment;

(ii) the prosecution of financial crimes;

(iii) investigations carried out by it;

(iv) the conviction of persons for financial crimes;

(v) judicial orders in connection with proceedings relating to financial crimes;

(vi) such other matters as the [CTD] may consider appropriate;

(j) manage, safeguard, maintain and control any property seized or restrained under this Act or seized, restrained or forfeited under any other enactment, in connection with proceedings relating to financial crimes;

(k) carry out such other investigation and perform such functions and enter into any transactions that -

(i) are assigned to it under this Act or any other enactment;

(ii) in the opinion of the [CTD], are necessary or incidental to the proper performance of its functions

(2) Subject to the provisions of this Act, the Division may, for the purpose of carrying out its functions-

(a) provide and receive information relating to the commission of a financial crime;

(b) provide information on typologies, statistics and other materials relating to financial crimes to -

(i) public bodies; and

(ii) such other persons as the [CTD] considers appropriate

(c) after consultation with the...