The Hon Mrs Portia Simpson-Miller and Others v Attorney-General and DPP
| Jurisdiction | Jamaica |
| Judge | Marsh, J,Pusey, J,McDonald-Bishop, J |
| Judgment Date | 20 September 2013 |
| Docket Number | CLAIM NO. 2011 HCV 07019 |
| Court | Supreme Court (Jamaica) |
| Date | 20 September 2013 |
[2013] JMFC FULL CRT 4
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE FULL COURT
The Honourable Mr. Justice Marsh
The Honourable Mr. Justice Pusey
The Honourable Mrs. Justice McDonald-Bishop
CLAIM NO. 2011 HCV 07019
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Bert Samuels instructed by Knight, Junor & Samuels for the 1 st and 2 nd claimants
Ms Deborah Martin and Mrs Sharon Usim instructed by Knight, Junor & Samuels for the 3 rd and 4 th claimants
Seymour Stewart and Matthieu Beckford instructed by Knight, Junor & Samuels for the 5 th claimant
R.N.A. Henriques , QC, Ms. Tana'ania Small and Miguel Palmer instructed by Livingston, Alexander & Levy for the 1 st respondent
Mrs. Caroline Hay , Loxly Ricketts and Garcia Kelly for the 2 nd respondent.
CONSTITUTIONAL LAW — FUNDAMENTAL RIGHTS AND FREEDOMS — MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS — REQUEST OF FOREIGN STATE FOR TAKING OF EVIDENCE FROM WITNESSES IN JAMAICA — WITNESSES REFUSING TO CO-OPERATE — APPLICATION OF CENTRAL AUTHORITY FOR ORDER FOR WITNESSES TO GIVE EVIDENCE ON OATH — ORDER GRANTED — WHETHER ORDER AN ABUSE OF PROCESS — WHETHER ORDER BREACHED CONSTITUTIONAL RIGHTS OF WITNESSES — RIGHT TO EQUITABLE AND HUMANE TREATMENT — RIGHT TO BE FREE FROM DISCRIMINATION ON POLITICAL GROUNDS — RIGHT TO FAIR HEARING — RIGHT TO DUE PROCESS — THE MUTUAL ASSISTANCE (CRIMINAL MATTERS) ACT 1995, SS. 6; 9; 16; 20 (1); 20(2); 20(3); 21; 25 (2); 25 (3) — THE MUTUAL ASSISTANCE (CRIMINAL MATTERS) (FOREIGN STATES) ORDER, 2007; THE CHARTER OF FUNDAMENTAL RIGHTS AND FREEDOMS (AMENDMENT) ACT, 2011, SS, 13 (3) (H); 13 (3) (H) (I) (II); 16 (2); 16 (3); 19 (1); 19 (3)
I have had the opportunity to read in draft the judgment of my learned sister, McDonald-Bishop, J. I agree with her reasoning and conclusion and I have nothing to add.
I have read in draft the judgment of my learned sister, McDonald-Bishop, J. I agree with her reasoning and conclusion and I have nothing further to add.
This claim arises from proceedings concerned with the application of the Mutual Assistance (Criminal Matters) Act, 1995 (‘the MACMA’) consequent on a request by the Kingdom of the Netherlands made on or around December 3, 2007 for Jamaica's assistance in the investigation of a criminal matter.
The Kingdom of the Netherlands, more specifically, has requested the assistance of Jamaica in the gathering of evidence from some named persons in relation to investigation being conducted by its law enforcement officials into alleged criminal conduct of a company incorporated in that country, Trafigura Beheer B.V. Amsterdam (‘Trafigura’).
The occurrences leading to the request by the Kingdom of the Netherlands for assistance under the MACMA emerged with much publicity on Jamaica's political landscape in or around October 2006. At the material time, except for the 5 th claimant, all the claimants were members of prominence of the People's National Party (‘The PNP’) that formed the government of the day as it does today.
At all material times, the Honourable Portia Simpson — Miller, the 1st claimant, was, as she is today, the Prime Minister of Jamaica, Member of Parliament and the President of the PNP. Mr. Robert Pickersgill, the 2 nd claimant, was a Member of Parliament, Minister of Government and Chairman of the PNP. The 3rd claimant, Mr. Collington Campbell, was a Member of the Senate, Minister of Government and General Secretary of the PNP. The 4 th claimant, Mr. Phillip Paulwell, was a Member of Parliament and a Minister of Government. The 5 th claimant, Mr. Norton Hinds, was, as described in the written submissions of the claimants, ‘a businessman with sympathies for the People's National Party (PNP)’.
The leader of the parliamentary opposition, Jamaica Labour Party (“the JLP’), was, then, the Honourable Mr. Bruce Golding.
In or around 2006, Mr. Golding announced in Parliament that Trafigura had made a payment of four hundred and sixty six thousand Euros (€466,000) to CCOC Association, a Jamaican company, of which the 3rd claimant, Mr. Collington Campbell, was a principal.
The JLP raised concerns about the propriety and legality of such payment. It was basically contended by them that it appeared to be an act of corruption in the sense of it being a kick-back or a bribery of the Government. This contention arose from the following factual background provided on the evidence. Trafigura was a contractual party with the Government of Jamaica for oil lifting. The contract expired in 2005. In 2006, Trafigura continued to lift oil by virtue of an interim arrangement with the Government. This interim arrangement was in place although the National Contracts Commission (‘NCC’) had recommended at the time that Glencore Energy UK Limited be awarded the new contract, it having been successful in its bid for the contract.
It was during the time that the interim arrangement was in place that three payments were made by wire transfer to the CCOC Association's account. Trafigura continued to lift oil after the payments were made. It is alleged that these payments represented an attempt by Trafigura to influence the Jamaican Government's decision to award the contract to them for the continued lifting of oil.
The PNP, at all material times, however, maintained that those payments were made as a donation to its political campaign with no strings attached.
The issue between the political divide was to be infamously labelled “the Trafigura Scandal”. It received much discussion on political platforms and enjoyed widespread media publicity and attention throughout the island.
Mr. Golding, in his capacity as Leader of the Parliamentary Opposition, and being dissatisfied with the explanation proffered by the PNP officials, wrote a letter to the Kingdom of the National Investigation Unit of the Netherlands ( Rijksrecherche ) requesting that an investigation be carried out into the circumstances in which the payment was made to CCOC. Mr. Golding's reason for requesting the investigation, as declared in his letter, was that ‘the explanation for the payment by Trafigura, and that given by the People's National Party (PNP) were clearly contradictory and irreconcilable and raise issues of corruption, kickback and bribery.’
Mr. Golding requested, in particular, an investigation into whether, and the extent to which, the payment made by Trafigura contravenes the Dutch Penal Code, the provisions of the Convention on Combating Bribery of Foreign Public officials and the OECD Guidelines for Multinational Enterprises.
In 2006, when the letter was written by Mr. Golding for a probe into the situation, the Kingdom of the Netherlands had not been declared by the relevant Minister of Justice as a foreign state to which the Act applied for mutual assistance in criminal matters and so it did not fall on the list of countries that could be assisted by Jamaica.
In 2007, there was a change in government following the general election in September of that year. The JLP was to form the government and Mr. Golding became Prime Minister. In or around 9 November 2007, the then Minister of Justice declared the Mutual Assistance (Criminal Matters) (Foreign States) Order 2007 (‘The Foreign States Order’) making the provisions of the MACMA applicable to the Kingdom of the Netherlands. By this change, the Kingdom of the Netherlands was included in the list of countries that could obtain assistance from Jamaica in the investigation of criminal matters.
In the wake of that change in the law, on 3 December 2007, the request was made by the Kingdom of the Netherlands to the Director of Public Prosecutions (‘the DPP’), named as the 2 nd respondent in these proceedings, for assistance in the investigation of the Trafigura Affair.
The 2 nd respondent, at the material time, was (and still is) designated by the Minister of Justice to be the Central Authority of Jamaica for the purposes of the MACMA. The 2 nd respondent is essentially sued in her capacity as the Central Authority under the Act although this is not apparent on the face of the claim form. Part of the Central Authority's prescribed role is to conduct investigation and/or to undertake proceedings here in Jamaica to facilitate requests of prescribed foreign states for assistance in criminal matters where necessary and permissible by the relevant law.
The request of the Kingdom of the Netherlands was made pursuant to the United Nations Convention against Transnational Organized Crime and the Protocols Thereto, 2001, to which both Jamaica and the Kingdom of the Netherlands are signatories. The request was for assistance to be granted by the 2 nd respondent, as the Central Authority of Jamaica, for investigation to be conducted within Jamaica as to alleged breaches of the Dutch Criminal Code by Trafigura. The offences being investigated concern, basically, the alleged bribery of public officials of a foreign state (that state being Jamaica).
In that first Letter of Request, the law enforcement officials of the Kingdom of the Netherlands posed a number of questions to be put to several persons in Jamaica in order to facilitate their investigation. It was requested that witness statements be obtained from these individuals. The claimants were all included among the list of persons of interest to be interviewed as witnesses. Mr. Golding was also on the list of persons to be interviewed.
By the time of this request in December 2007, the PNP, to...
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