Thwaites v DPP and Another; Morrison v DPP and Another; Thwaites v DPP and Another; Hyde v DPP and Another

JurisdictionJamaica
CourtSupreme Court (Jamaica)
Judge McCALLA C.J. , MCINTOSH J. , HIBBERT J.
Judgment Date18 December 2008
Judgment citation (vLex)[2008] 12 JJC 1801
Date18 December 2008
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CORAM:
THE HONOURABLE CHIEF JUSTICE THE HONOURABLE MARVA MclNTOSH THE HONOURABLE LLOYD HIBBERT
CLAIM NO. 2007 HCV 0221
CLAIM NO. 2007 HCV 00290
CLAIM NO. HCV 00440/07
CLAIM NO. 2007 HCV 00476
BETWEEN
MARK THWAITES
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
1 ST RESPONDENT
AND
THE ATTORNEY GENERAL
2 ND RESPONDENT
CONSOLIDATED WITH
BETWEEN
JAMES MORRISON
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
1 ST RESPONDENT
AND
THE ATTORNEY GENERAL
2 ND RESPONDENT
CONSOLIDATED WITH
BETWEEN
CATHERINE PARKE THWAITES
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
1 ST RESPONDENT
AND
THE ATTORNEY GENERAL
2 ND RESPONDENT

CONSOLIDATED WITH
BETWEEN
DEBBIE HYDE
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
1 ST RESPONDENT
AND
THE ATTORNEY GENERAL
2 ND RESPONDENT
Winston Spaulding, Q.C. and Garth McBean for the Applicant Mark Thwaites Instructed by Garth McBean and Co.
Dennis Morrison, Q.C. and Charles Williams instructed by Dunn Cox for the applicant James Morrison
Mrs. Jacqueline Samuels-Brown and Mrs. Tameka Jordon instructed by Firmlaw for the applicant Catherine Parke Thwaites
Patrick Atkinson and Miss Deborah Martin for the applicant Debbie Ann Hyde
Richard Small, Phillip Sutherland and Miss Pauline McKenzie instructed by the Director of Public Prosecutions for the Director of Public Prosecutions
Patrick Foster, Q.C. and Jerome Spencer instructed by Director of State Proceedings for the Attorney General

INSURANCE LAW - Insurance industry - Authority to regulate - Criminal charges for breach of provisions of Insurance Act 2001 - Authority of Financial Services Commission - s 20(1) of the Constitution - Retrospective legislation - Validity of charges - Financial Services Commission Act

1

Financial Services Commission Act - Authority to Regulate Insurance Industry - Criminal charges for breach of provisions of Insurance Act 2001Insurance Act 2001-Authority of Financial Services Commission - Section 20 (1) of the Constitution - Retrospective legislation - Validity of charges.

McCALLA C.J
2

The applicants Mark Thwaites, James Morrison, Catherine Parke Thwaites and Debbie Ann Hyde each filed Fixed Date Claims supported by affidavits, against the respondents, the Director of Public Prosecutions and the Attorney General. They seek Declarations concerning the validity of legislative provisions relating to the Insurance Act and the Financial Services Commission Act which would result in criminal charges preferred against them being dismissed.

3

Their applications were consolidated and are now before this Court for Judicial Review of the decision of the Director of Public Prosecutions to charge them with criminal offences.

4

On divers dates in the years 2005 and 2006 the applicants were each arrested and charged under section 147 (1) (a) and147 (1) (c) (ii) of the Insurance Act for offences which were allegedly committed between December 17, 2004 and January 21, 2005. Their cases are pending before the Corporate Area Criminal Court.

5

Each applicant is charged on Information with failing to comply with directions of the Financial Services Commission to provide proof of the injection of capital in the Dyoll Insurance Company Limited as authorized by sections 46 and 53 of the Insurance Act. The directions were given by the Financial Services Commission on divers dates between the 17 th of December 2004 and the 21 st of January 2005. They are charged with offences under sections 147(1) (a) and 147(1)(c)(ii) of the Insurance Act.

6

The applicant Mark Thwaites seeks the following reliefs:

  • 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 number 9454/05 in the Resident Magistrate's Court, for the Corporate Area held at Half Way Tree be discontinued by the 1 st Respondent."

7

Paragraph 4 was amended to add at the end thereof the words "to the extent that it purportedly renders retroactively criminal acts allegedly done by the applicant."

8

The other applicants claim similar reliefs and similar amendments were made in each case, but the applicant Catherine Parke Thwaites also claims damages for breach of her constitutional rights.

9

In exercise of his power under section 1 of the Financial Services Commission Act, on August 2, 2001 the Minister of Finance brought into operation the Financial Services Commission Act, but excluded certain provisions relating to the Insurance Industry.

10

The Notice dated July 30, 2001 reads as under:-

"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 (a) of the definition of Financial Services in section 2 and;

  • (b) the provisions of the 4 th schedule to the Act in respect to the Insurance Act shall come into operation.

11

Therefore, the provisions which were applicable to the Insurance Industry were not brought into effect. Section 2 of the Financial Services Commission Act states inter alia:-

"Financial Services" means services provided or offered in connection with (a) insurance..."

12

At the time the above Notice was issued the Insurance Act was not yet passed. It was passed on December 21, 2001 and so the provisions of the Financial Services Commission Act relating to Insurance did not come into effect as they had been excluded by the Notice.

13

On March 4, 2005 the Minister purportedly brought the said provisions into operation by the Financial Services Commission (Appointed Day) (Insurance Provisions) Notice which states in part as follows.

"2. The 4 th day of March is hereby appointed as the day on which the following provisions of the Financial Services Commission Act, namely -

  • (a) paragraph (a) of the definition of "financial services" in section 2."

  • (b) The provisions of the Fourth Schedule to the Act relating to the Insurance Act, shall come into operation."

14

In written submissions advanced on behalf of the applicant Mark Thwaites by Mr. Winston Spaulding Q.C., his contentions were summarized as follows:

  • "(a) Parliament may authorize the Minister to bring an Act into operation by an Appointed Day Notice. The power that was given to the Minister under Section 1 of the Financial Services Commission Act No. 9 of 2001 to bring the insurance provisions into effect did not have any provisions reserving any power to bring the Act into operation in stages. Therefore on bringing the Act into operation on the 2 nd August 2001, except for the provisions applicable to the insurance industry, the power was spent.

  • (b) The Applicant further contends that when the Minister purported to bring the provisions of the Financial Services Commission Act applicable to the insurance industry into operation on the 4 th March 2005 by the Financial Services Commission Act (Appointed Day) (Insurance Provisions) Notice there was no power under the provisions of the Act as it then stood to do so. Further the provisions of Section 1 of the Act under which he purported to bring those provisions into operation gave him no such power since that section as it stood in 2005 merely recited the title of the Act.

  • (c) The Applicant contends that even if there had been a power to bring the provisions of the Act applicable to the insurance industry into operation those provisions could not be made retroactive in relation to the insurance industry and the Applicant as this would be in breach of under the Section 20 (7) of the Constitution of...

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