Monday, May 16, 2016

Ruddock v R

R v Jogee [2016] UKSC 8
Ruddock v R [2016] UKPC 7
That Julian Knowles QC of the UK is a brilliant barrister there can be no doubt.  He regularly appears in death penalty cases in the Courts of Appeal of the West Indies, and is well-known to the barristers and judges of the region.  His arguments usually prevail.  I don’t know Felicity Gerry QC, but she and the other senior British barristers in these appeals are probably just as brilliant.
They persuaded the Privy Council to reverse itself on a long-held principle of law.  That is what they did in this case, a murder appeal from Jamaica:  http://www.bailii.org/uk/cases/UKSC/2016/8.html   The video of Lord Hughes’ delivery of the judgment is here: https://www.supremecourt.uk/watch/uksc-2015-0015/judgment.html   It is even more spectacular that the decision in this Privy Council case has been delivered jointly with an English decision in the Supreme Court of the United Kingdom.
Ever since as a first-year law student in 1968 I attended Lord Kenny’s Criminal Law lectures in the Great Hall at Lincoln’s Inn, I have known that it is a fundamental principle of the criminal law that an accessory is as guilty as the principal to the commission of the offence.
That principle of the common law was later extended, in what has been called the rule in Chan Wing-Siu v R [1985] AC 168, or the doctrine of parasitic accessory liability.  This reads that:
if two people set out to commit an offence (crime A), and in the course of that joint enterprise one of them (D1) commits another offence (crime B), the second person (D2) is guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did. D2’s foresight of that possibility plus his continuation in the enterprise to commit crime A were held sufficient in law to bring crime B within the scope of the conduct for which he is criminally liable, whether or not he intended it.
In both the English case of Jogee and the Jamaican case of Ruddock, the appellants were convicted of murder after directions on parasitic accessory liability to the above effect. 
In Jogee’s case, he and a friend named Hirsi spent the evening of 9 June 2011 taking drink and cocaine, becoming increasingly intoxicated and aggressive.  They got into a violent argument with the deceased at his girlfriend’s residence.  Jogee was brandishing a bottle, striking a car in the road with it, and shouting encouragement to Hirsi.  It was Hirsi who stabbed and killed the deceased with a knife he picked up at the premises.  The jury convicted Jogee after a standard Chang Wing-Siu direction on the liability of an accessory.
In the Ruddock appeal, his co-defendant, Hudson, pleaded guilty to the murder of a deceased taxi-driver on the beach at White House in St James in Jamaica on 30 June 2007 in the course of robbing him of his Toyota station wagon.  Ruddock admitted to the police that he had helped tie the deceased’s feet in the course of the robbery.  He denied that he had participated in Hudson’s later murder of the deceased by slitting his throat with a ratchet knife.
The trial judge directed the jury that the prosecution had to prove that each of Hudson and Ruddock shared a common intention to commit “the offence”.  That common intention included a situation in which “the defendant, whose case you are considering, knew that there was a real possibility that the other defendant might have a particular intention and with that knowledge, nevertheless, went on to take part in it.”   He did not tell the jury that if they were sure that Ruddock was a party to carrying out the robbery, it did not automatically follow that he was also party to the murder of the deceased.  That question required separate and further consideration.  Instead, the jury accepted the standard parasitic accessory direction given by the judge, and convicted Ruddock of the murder as an accessory.
The Crown argued that even if the Chan Wing-Siu principle was wrong, it should be a matter for the legislatures to decide whether to make any change in the law.  The principle was in place in England and Wales, and in other common law jurisdictions such as Jamaica, for 30 years. 
After a detailed analysis of the law on accessories, Lord Hughes, with whom the other judges agreed, starting at paragraph [79], decided that the principle was wrong and that the Board must reverse it.  He asserted at paragraph [85] that the doctrine was a common law one and it was proper for the courts to correct any error in it.
Before the Supreme Court/Privy Council, counsel for the Crown accepted on behalf of the prosecution that if the court concluded that the Chan Wing-Siu principle was wrong, the appeals must be allowed.  The court had no difficulty in the Jogee appeal in deciding that the appeal must be dismissed.  In the Ruddock case, they invited the parties’ written submissions as to the advice which they should humbly tender to Her Majesty regarding the disposal of the appeal.  The judgment in the Ruddock appeal is thus an interlocutory one in the sense that it is a preliminary one to the final delivery of the advice which the Board will tender to the Queen.
At paragraph [3] of the judgment, Lord Hughes nonchalantly notes that “The two appeals, Jogee in the Supreme Court and Ruddock in the Judicial Committee of the Privy Council, were heard together.”
Having read the scholarly and detailed analysis contained in the joint judgment, no one can take any issue with the law there set out, nor with the conclusions of law arrived at.  My problem is with the forum, or the court itself.  I have difficulty seeing how the UK Supreme Court comes to be delivering a final English judgment jointly with a Privy Council judgment, interlocutory though it might be.
In this case, one bench of judges heard argument on two appeals, one to the Supreme Court from the English Court of Appeal and the other to the Privy Council from the Jamaican Court of Appeal.  They then delivered one judgment.  The only concession offered by Lord Hughes to the constitutional requirements occurs when in dealing with the Ruddock facts and argument he switches his language in the judgment to refer to himself and the panel he was part of as the Board of the Privy Council.
I never saw or heard of such a thing before.  The West Indies do not share the Supreme Court with the United Kingdom.  The Supreme Court is a UK court, while the Privy Council is a Jamaican court.  Amazingly, there has not been a stutter of protest at what in my view is an extraordinary act of constitutional impropriety from the Bar anywhere in the Caribbean that I have read of.
The only explanation there can be is that everyone here is as stunned at this development as I am.
10 May 2016
Don Mitchell CBE QC
Article originally written for the publication ‘West Indian Lawyers’

Sunday, May 15, 2016

ECCB Agreement Amendment

The ECCB (Amendment of Schedule) Order, 2016
[1]     Prior to the invention of our EC dollar in 1965, and since 1935, the name of our currency was the “BWI dollar”.  Then, our islands entered into the Eastern Caribbean Currency Agreement.  This established the Eastern Caribbean Currency Authority (ECCA), with headquarters in Barbados.  ECCA was authorised to issue the new EC dollar.  Barbados withdrew from the Currency Union in 1972.  Our governments decided to move ECCA’s headquarters to St Kitts.  Gradually, most of our countries became independent.  The name BWI dollar seemed obsolete.  The name was changed to the “EC dollar”.
The Agreement
[2]     In 1981, the Organisation of Eastern Caribbean States (the OECS) came into existence with the signing of the Treaty of Basseterre in St Kitts.  The following year, 1982, in Trinidad, most of our OECS governments[1] signed the Eastern Caribbean Central Bank Agreement (the ECCB Agreement) bringing an end to the old ECCA.  The ECCB Agreement established the Eastern Caribbean Central Bank (the ECCB) with its headquarters in St Kitts.  Anguilla signed up and became a full member in 1987.
The Act
[3]     As every High School CAPE Law student knows, a treaty is not a law.  A treaty may be a source of a law.  A treaty or convention is an agreement which may be binding on governments among themselves, but it does not affect you or me.  To make it a part of the law of the country, an Act of parliament to that effect must be passed by the local legislature.
[4]     In 1983, though Anguilla was not yet a full member of the Currency Union, our House of Assembly passed the ECCB Agreement Act, 1983.[2]   This enactment made the ECCB Agreement a part of our law. The Act is a very short one.  It consists of just 6 brief sections.  The bulk of the Act is taken up by the ECCB Agreement.  This is set out as a Schedule to the Act.  Section 2 of the Act provides that the Agreement is to have the force of law in Anguilla.
[5]     There is provision in the Agreement and in the Act for the members of the Currency Union to amend the Agreement.  Section 4 of the Act lays down the procedure to be followed.  The section says that, once the Agreement is amended by the governments, the Governor must bring the amendment into law in Anguilla by signing an Order published in the Official Gazette.  As the Constitution provides,[3] once the Executive Council (Anguilla’s Cabinet) agrees to take a step, and the Governor is named in the relevant law as the official who must sign, then the Governor must sign it for and on behalf of the Government of Anguilla.  It is the act of the government, not a personal act of the Governor.
[6]     The senior policy making body of the ECCB consists of the Monetary Council.  This is made up of the eight Ministers of Finance of the participating governments.[4]  Given this management structure, there is always a risk of paralysis.  An action that the ECCB might propose for the benefit of one member might be vetoed by another member.  In late 2007, our sub-region was seriously affected by the world-wide banking crisis.  The ECCB found itself powerless to intervene in the banking crisis in the way a central bank is expected.  It soon became apparent that the ECCB was ineffective in acting as a lender of last resort for any member country that might get into difficulty.  Change in our system of banking supervision was desperately needed.  The Central Bank sought advice from the World Bank and the International Monetary Fund on the reforms that had to be made.
[7]     In 2012 the Basel Committee on Banking Supervision issued new Core Principles for Effective Banking Supervision.  These Core Principles are the minimum standards by which the prudential regulation and supervision of banks and banking systems around the world are judged.  There are in all 29 Core Principles[5] for effective banking supervision.[6]
[8]     The first of them is that there must be a suitable legal framework for banking supervision.  A properly established Central Bank must be empowered to license banks, conduct ongoing supervision, address compliance with laws, and take timely corrective action to address safety and soundness concerns.  At the time of the financial crisis, the local Ministers of Finance were the licensing authority for banks of the sub-region, not the Central Bank.  Our Central Bank, the ECCB, failed the first of the Core Principles.
[9]     The second Core Principle covers the independence and legal protection required for all Central Banks.  For a Central Bank to be recognised as effective, it must possess independence and autonomy.  Local law must provide protection for the Central Bank and its staff against lawsuits for actions taken while discharging their duties.  No person should be permitted to bring a lawsuit which can block a Central Bank in carrying out its banking supervision.
[10]   That does not mean that the Central Bank is immune from liability.  If a citizen is harmed as a result of any wrongful action taken by the Central Bank, he may still file a lawsuit.  If he has suffered loss, he will be entitled to be paid damages or compensation.  But he cannot get an injunction that will stop the Central Bank from carrying out its supervisory functions.  It was evident to the international banking community that our Central Bank had no such powers or protection under the existing Agreement and local legislation.  Our Central Bank failed the second of the Core Principles.  The ECCB simply did not meet the basic standards expected of a Central Bank.
[11]   The Monetary Council received and considered a number of reports[7] and recommendations from consultants.  These were hired to advise on steps needed to upgrade the ECCB.  It was imperative the ECCB should pass the Basel Committee’s tests for effective banking supervision.  Finally, the Monetary Council agreed to a number of reforms.
[12]   In sum, our governments agreed to take eleven steps to bring our Currency Union up to international standards.[8]  Among the first of the reforms agreed was the need to amend the ECCB Agreement to give the Central Bank the power to intervene and take necessary action to prevent the collapse of a failing bank and to restructure its business and capital base.  Other steps included replacement of the outdated Banking Act with a modern Banking Act to reflect the new banking regime.  The new Banking Act was passed by our House of Assembly and became law with the Governor’s assent on 18 April 2016.
The Amended Agreement
[13]   At its 81st meeting on 24 February 2015, the Monetary Council agreed that legislative and regulatory reforms were needed to protect the ECCU banking sector.  Then-Chief Minister, Hubert Hughes, signed up to the Eastern Caribbean Central Bank Agreement (Amendment), 2015 on behalf of Anguilla.  This amendment to the Agreement would not become part of our law until an Order was signed by the Governor incorporating it into our law as provided in the ECCB Agreement Act.[9]
The Amendment Order
[14]   On 22 April 2016, Anguilla’s Governor duly signed the ECCB Agreement (Amendment of Schedule) Order, 2016.[10]  By this legislative act, the Governor, as authorised both by our House of Assembly in the provision of section 4 of the ECCB Agreement Act, and by the Executive Council led by Chief Minister Victor Banks, duly brought into law the Amended Agreement signed the year before by Chief Minister Hughes.[11]
Conclusion
[15]   Anguillians should be proud that we have finally, if belatedly, shown ourselves to be supportive of the new regulatory standards which the international banking community expects of our banking sector.  We were previously viewed as wild-west bankers, not subject to proper regulation by an enabled Central Bank.  We cannot be viewed in this light any longer.  We now conform to international standards.  Our banking sector can stand equal with the rest of the world.


[1]      Not Anguilla, whose membership was still vetoed by the St Kitts Government.
[2]      Revised Statutes of Anguilla, c E5.
[3]      Section 28 of the Anguilla Constitution Order, 1982.
[4]      The current members of the Monetary Council are described here: http://www.eccb-centralbank.org/About/monetary.asp
[5]      Previously 25 in number.
[6]      Which I have previously detailed in an article you can read at: http://donmitchellcbeqc.blogspot.com/search/label/Core%20Principles
[7]      Copies of which are available to read on the ECCB website: http://www.eccb-centralbank.org/
[8]      I have described these 11 essential steps in an article on my website which you can read here: http://donmitchellcbeqc.blogspot.com/2015/11/banking-reform-in-anguilla-2015.html
[9]      The Hubert Hughes administration published the Amendment to the Agreement in February 2015 before the general elections which brought the Victor Banks administration to power.  It can be seen on the Government of Anguilla website here: http://www.gov.ai/documents/ag/ECCBLIB-678364-v1-ECCB_Agreement_Amendment_2015_-_Final_Version.pdf
[10]   Local Statutory Instrument No 20/2016.
[11]   What is not clear is what motivated then-Chief Minister Hubert Hughes to attempt to pass the very same amendment to the Agreement into law on 25 October 2013 using the incorrect procedure of rushing an Amendment Act through the House of Assembly with all three readings taking place on the same day in the absence of the three Opposition members and the Ex-officio members of the House.  No one in Anguilla seems to know if the Governor ever contributed to the debacle by assenting to the Act.  The story is related in The Anguillian Newspaper here: http://theanguillian.com/2013/11/opposition-asks-governor-not-to-sign-acts-says-house-sat-without-a-quorum/  The level of incompetence demonstrated by the then Attorney-General’s chambers in drafting and approving this law and procedure is nothing short of astonishing.

Friday, May 13, 2016

2012 Accounts and Report



Commentary on the recently published Government of Anguilla 2012 Accounts
The latest Report on the Government’s Accounts by the Chief Auditor of Anguilla has now been published.  You can download it from the Government of Anguilla’s website: http://www.gov.ai/documents/hoa/Government%20of%20Anguilla%20Accounts%202012.pdf.  This Report relates to the income and expenditure of the Government of Mr Hubert Hughes in the year 2012.  It is over 75 pages long, but you don’t need to read all of it.  It is sufficient to read his Summary Report on the first 13 pages to have a full understanding of what a disaster zone the government’s accounts for 2012 appear to be. 
The Internal Audit Department must be congratulated on the hard work they have obviously done.  They have enabled the Chief Auditor to get the 2012 Report out a mere six months after the 2011 Report was published in November 2015.  The 2011 Report was the first report on Anguilla’s public accounts published in the nearly 50 years that Anguilla has managed its own finances.[1]  This is nothing short of remarkable.  It took 50 years for the first set of public accounts and auditor’s report to be published, and now the second one has been put in the public domain in a matter of a few months.
As in his 2011 Report, the Chief Auditor’s Certificate on the 2012 Report is a “qualified” one.  The use of this word “qualified” by an auditor is a serious matter.  It indicates that the opinion he expresses is not a clear or a clean one.  In his Certificate at pages A, B and C of his Report, he explains why his Certificate has to be a qualified one.  I summarise his reasons below, in case you don’t get a chance to read it for yourself.
The Consolidated Fund:  All money received by or paid out by the government of Anguilla is required by law to be paid into the Consolidated Fund.  The law is the Financial Administration and Audit Act (the Act).  The purpose for this provision is obvious.  If all money is paid into and paid out of one account, it makes it easy for an auditor to check what money was received, and what money was paid out.  If the money is paid into multiple accounts, or not deposited at all, it becomes impossible to say with certainty what money was received.  Chaos will reign in the accounts.  The law requires that this not be done.
Role of House of Assembly:  All money paid out on government expenses is required to be authorised by the House of Assembly.  The Assembly does this each year by approving the estimates of government’s income and expenses in what is called the Appropriation Act.  Each government department puts together its estimates for its income and expenses, and the Ministry of Finance puts them all together in a budget called the Estimates.  When the House of Assembly approves government’s total income and expenditure, it passes the Appropriation Act.  If, half-way through the year, a department discovers it needs to increase its estimate of income, or of its expenses, it puts together a request to the Assembly to approve this variation, and the Assembly passes a Supplementary Appropriation Act.  Without the approval of the Assembly, any payment of public funds is illegal.
Contingency Warrants:  The Minister of Finance is permitted in an emergency to authorise a department to make a variation from the amount approved, but he is expected by the Act to seek and obtain the approval of the Assembly from time to time.  Only the Minister, not a public servant, can sign the authorisation varying the amount approved for a particular purpose.  General Orders, the contract signed by every public servant in the employ of the government, provides that if any Permanent Secretary authorises an expense or payment that is not approved in an emergency by the Minister of Finance, or more generally by the Assembly, he will be made to reimburse the public funds out of his own pocket.  This is all set out in the law and in General Orders.
Chief Auditor’s Qualified Certificate:  You don’t have to be an accountant or even qualified as a book-keeper to understand what the Chief Auditor is describing in his Qualified Certificate.  What he sets out in his Summary Report at the four pages marked H, I, J and K appears to show that the public service of Anguilla treats the Consolidated Fund as a gigantic ‘slush fund’.  One definition of ‘slush fund’ is “money earmarked for a loosely defined, but legitimate, purpose that is instead surreptitiously used for an illegitimate purpose.”
The Chief Auditor’s Certificate is qualified for a number of reasons, all which he sets out.  In summary, some of the payments made by government departments, or exemptions from payments that were supposed to be made by taxpayers, were not legal.  In his opinion, a number of matters were not regular or in compliance with the legal requirements.  These are some of them.
Company registrations:  The Companies registration law sets out the fee to be paid to government for forming a company.  During 2012, government entered into arrangements with certain company registration agents to form companies in bulk at a discounted fee.  These discounts amounted to EC$2.3 million.  However, these discounts were not authorised by law.  They were illegal.
Reallocation warrants:  The Minister of Finance is allowed by law to reallocate surpluses enjoyed by a department to be spent even though in excess of the amount authorised by the Assembly.  He does this by way of what is called a “reallocation warrant”.  However, all reallocations issued in 2012 were authorised by the Permanent Secretary and not by the Minister.  The reallocations made during 2012 were not authorised in the manner required by the Act.  Not some of them, but all of them.
Tax revenue:  He reports that the Government of Anguilla has not been able to satisfy him that all payments due for property tax, the interim stabilisation levy, or taxes on goods and services have been paid.  So, government cannot show it has collected all the tax revenue it is supposed to collect under existing legislation.
Advances:  The law permits the Minister by an “advance warrant” to authorise the Accountant General to make advances to a government department from the Consolidated Fund.  However, advances made in 2012 were not authorised by the Minister.  This practice of unauthorised advances continues to be made despite our reading in the earlier report his warning that the practice must stop.
Remissions:  Once the Assembly has said what amount is to be paid in tax, no government official may excuse a particular taxpayer from paying the amount due.  Any forgiveness of a tax requires approval by the Assembly for it to be lawful.  That is so basic that it should not need emphasising far less repeating.  But, yet again, the Chief Auditor reports that Executive Council continues its practice of selectively excusing certain taxpayers from payments due under the law.  This amounts to ministers illegally granting favours to selected taxpayers.
The Chief Auditor expresses a “qualified” opinion on the government’s financial statements for the year 2012 for several reasons.  The illegal discounts, unauthorised reallocations, incomplete records on property and other taxes, unauthorised advances from the Consolidated Fund, and illegal approvals of remissions, cause the Chief Auditor to find that the accounts are irregular or not regular.
His opinion is “qualified” further because government does not maintain adequate accounting records to support the completeness, accuracy, and validity of advances, deposits, arrears of revenue, remissions, and gifts made to government.
The question we all ask is whether his report on the coming 2013 Accounts will show any significant improvement.  Or, will the Consolidated Fund continue to be nothing but a gigantic slush fund manipulated by senior public servants on a whim?



[1]     Government has recently put this 2011 Report up on its website, and it may be downloaded or read at: http://www.gov.ai/documents/hoa/Government%20of%20Anguilla%20Report%20and%20Accounts%20of%20the%20Consolidated%20Fund%202011%20New.pdf.