TriniTuner.com  |  Latest Event:  

Forums

Ish & Steve... Piarco Update - State Wins US100M in Miami

this is how we do it.......

Moderator: 3ne2nr Mods

User avatar
hydroep
3ne2nr Toppa Toppa
Posts: 5018
Joined: February 4th, 2007, 9:16 pm

Re: Ish/Steve.... Update "May Go Free"

Postby hydroep » April 5th, 2013, 3:32 pm

Nice...I'd like to read her judgement though.

pugboy
TunerGod
Posts: 25284
Joined: September 6th, 2003, 6:18 pm

Re: Ish/Steve.... Update "May Go Free"

Postby pugboy » April 5th, 2013, 3:32 pm

appeal courts, privy council and more tax payers money

User avatar
Country_Bookie
punchin NOS
Posts: 2730
Joined: September 2nd, 2008, 1:14 pm
Location: Beating the sky with broken wings
Contact:

Re: Ish/Steve.... Update "May Go Free"

Postby Country_Bookie » April 5th, 2013, 4:52 pm

pugboy wrote:appeal courts, privy council and more tax payers money


They were ordered to pay the State's legal costs.

brams112
punchin NOS
Posts: 3697
Joined: July 15th, 2008, 8:58 pm
Location: trinidad

Re: Ish/Steve.... Update "May Go Free"

Postby brams112 » April 5th, 2013, 9:00 pm

Judge make the raging a$$ real mad oui,he even had a press conference with his pals to say they glad the judge tell them bois no,buh we still not satisfied because anand laffing at oui still making a a$$ of oui self.

User avatar
Sumana.00
Chronic TriniTuner
Posts: 521
Joined: May 31st, 2005, 9:02 pm
Location: Manchester, UK

Re: Ish/Steve.... Update "May Go Free"

Postby Sumana.00 » April 5th, 2013, 9:31 pm

hydroep wrote:Nice...I'd like to read her judgement though.



http://www.trinidadexpress.com/news/Hig ... 60711.html knock yourself out

bluefete
TriniTuner 24-7
Posts: 13258
Joined: November 12th, 2008, 10:56 pm
Location: POS

Re: Ish/Steve.... Update "May Go Free"

Postby bluefete » April 5th, 2013, 10:07 pm

pugboy wrote:appeal courts, privy council and more tax payers money



THIS!!!!!

User avatar
Habit7
TriniTuner 24-7
Posts: 11547
Joined: April 20th, 2009, 10:20 pm

Re: Ish/Steve.... Update "May Go Free"

Postby Habit7 » April 5th, 2013, 10:15 pm

I have never seen so much people high-fiving each other over how well their gaffe didn't have the adverse consequences as bad as some predicted.

PR for the win.

User avatar
De Dragon
TriniTuner 24-7
Posts: 17902
Joined: January 27th, 2004, 3:49 am
Location: Enjoying my little miracles............

Re: Ish/Steve.... Update "May Go Free"

Postby De Dragon » April 7th, 2013, 6:37 pm

Wey de sheep dem dey?

User avatar
shogun
TriniTuner 24-7
Posts: 14208
Joined: May 6th, 2008, 12:24 pm
Location: Gone Rogue.

Re: Ish/Steve.... Update "May Go Free"

Postby shogun » April 7th, 2013, 6:53 pm

Habit7 wrote:I have never seen so much people high-fiving each other over how well their gaffe didn't have the adverse consequences as bad as some predicted.

PR for the win.



My favorite had to be, the AG saying he feels vindicated. Some gymnastic PR'ing right there.

And the sheep, lap it up.

User avatar
RIPEBREDFRUIT
18 pounds of Boost
Posts: 2375
Joined: February 1st, 2011, 8:11 am
Location: Buying bread for yuh mudder

Re: Ish/Steve.... Update "May Go Free"

Postby RIPEBREDFRUIT » June 5th, 2014, 12:23 pm

So were they ever released? or pardoned? LMAO

User avatar
eliteauto
TriniTuner 24-7
Posts: 14016
Joined: March 10th, 2006, 1:36 am
Location: Love is progress, hate is expensive
Contact:

Re: Ish/Steve.... Update "May Go Free"

Postby eliteauto » February 23rd, 2015, 6:44 am

DPP letter blocks trial delay
Lawyers for accused in repeal of Section 34 seek Privy Council hearing around May 2016
Attorneys seeking the interest of businessmen Ameer Edoo and Steve Ferguson over the repeal of Section 34 at the Privy Council have asked for the hearing to take place no sooner than May 2016.

But this request was thwarted, following the intervention of Director of Public Prosecutions (DPP) Roger Gaspard SC, in a letter to the regis­trar of the Privy Council.

Information received by the Sun­day Express stated the request for deferring the appeal was made by attorneys for Ferguson and Edoo, and

agreed to by attorneys retained by the Office of the Attorney General (AG).

At the time, Anand Ramlogan was then AG.

The State’s legal representatives are Lord David Pannick QC and Alan Newman QC while Edward Fitzgerald QC is seeking the interest of the businessmen.

In his letter to the registrar, Gas­pard, who is appearing as an interes­ted party in the proceedings, stated he was not in favour of the appeal being “unduly delayed”. He also poin­ted out attorneys seeking the interest of the State never informed his legal representatives of the May 2016 date.

Contacted yesterday evening, Gas-

­pard would only confirm he wrote the registrar of the Privy Council.

Following Gaspard’s letter, sour­ces say the May 2016 date was quashed and the appeal will now be heard on October 20.

When the Sunday Express contac­ted Gaspard yesterday afternoon, he confirmed he had written to the Privy Council.

The Sunday Express contacted Registrar of the Privy Council Louise Di Mambro on Thursday morning, and she confirmed “there was some legal wrangling regarding a date for the hearing being heard on or about May 2016”.

“There was some controversy about it being listed in 2016 and, now, it’s all settled for October 2015,” Di Mambro said.

Di Mambro said the appeal for the businessmen and businesses was lodged on January 12, 2015.

Ferguson, along with Edoo and Maritime Life (Caribbean) Ltd

(Mari­time General Insurance Com­pany Ltd and Fidelity Finance and Leasing Company Ltd), were chosen as test cases, following the repeal of Section 34.

Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011 sought to abolish preliminary enquiries for serious criminal matters in specific categories and stated if cases had not been started within ten years of the date an offence had been committed, the accused could apply to have the matter dismissed.

Following the public outcry, seve­ral of the accused who sought to benefit from Section 34 filed con­sti­tutional motions after the legislation was repealed on Septem­ber 12, 2012.

Shortly after, Prime Minister Kamla Persad-Bissessar fired former justice minister Herbert Volney over Section 34. Persad-Bissessar at the time said Volney had misled the Cabinet.

When the controversial section was proclaimed on August 31, 2012, 42 applicants filed motions to have their criminal cases dismissed.

They included, former prime minister Basdeo Panday; his wife, Oma; Ferguson; Edoo; businessman Ishwar Galbaransingh; former Uni­ted National Congress (UNC) ministers Brian Kuei Tung, Russell Huggins, Carlos John; and others.

Both Ferguson and Galbaransingh are facing a series of money laun­de­ring and fraud charges in the United States, as well as char­ges of corrup­tion relating to the construc­tion of the Piarco Interna­tion­al Airport.

In 2011, Ramlogan had decided against extraditing Ferguson and Galbaransingh since according to him, all avenues for legal redress were not yet exhausted and the men still had constitutional rights.

Ramlogan said his decision was based on advice given by James Lewis QC.

Lewis, in his advice, stated he was assured Ferguson and Galbaransingh will face a speedy trial in T&T.

In his legal opinion dated Decem­ber 17, 2011, Lewis said, “On the other hand, I am informed the claim­ants can be tried in Trinidad and Tobago almost immediately on the same conduct,” Lewis said.

The outcome of the court matters in T&T, as well as the Privy Council, hinges on when the US can re-request their extradition.

In an immediate response to ques­tions posed by the Sunday Express on Wednesday, regarding the request by the men’s attorneys, public affairs specialist in the Justice Department in Washington DC, USA, Peter Carr said: “As a matter of policy, we generally do not comment on extra­dition matters unless and until a defendant appears in the US.”

When the Sunday Express con­tac­ted Ramlogan yesterday afternoon and asked for his reasons against not

applying to the Privy Council for an

earlier hearing and why he agreed to

the May 2016 hearing, given the pub-

lic interest over Section 34, he said, “I think you should refer all ques­ti­ons

concerning matters of the State to the current Attorney General”.

The Sunday Express pointed out to Ramlogan he was the substantive attorney general at the time, but the call dis­connected.

Several efforts to contact Ramlo­gan again were unsuccessful.

This is not the first incident of the Office of the AG and the Office of the DPP clashing.

On June 4 last year, Fitzgerald, at the Court of Appeal hearing, told the court the AG (Ramlogan) had given the undertaking should the Court of Appeal rule against the trio, then the State would not object to conditional leave being granted.

This means the State will not object to there being a stay of crimi­nal proceedings before Magis­trate Ejenny Espinet and the Section 34 application in the High Court until the Privy Council delivers its ruling.

Attorney Ian Benjamin, who sought the interest of the DPP had toldthe court Gaspard would not be adop­-ting such a position as the State’s.
Benjamin had told the court: “The DPP does not think it is appropriate to consent to stay the committal proceedings. He (DPP) did indicate there has been significant progress made at the Magistrates’ Court and he wants to progress with those pro­ceed­ings”.

Gaspard had entered the proceed­ings as an interested party.

After hearing the parties involved, the panel ruled in favour of the trio.


PM congratulated

speedy hearing


On April 6, 2013, Prime Minister Kamla Persad-Bissessar issued a statement following Dean-Armorer’s ruling on Section 34.

In the statement, the PM claimed she was pleased for the State’s his­-

toric legal victory in this unprece­den­ted constitutional case. “The ruling comprehensively dis­missed the various grounds of challenge to the repeal of Section 34.

“As noted by the court, the Gov­­ern­­ment moved swiftly to repeal Section 34 and drafted the repeal in a

manner that nullified any legitimate expectations and retroactively cleared

the way for the defendants to be tried.”

The PM had also said, “I was par­tic­ularly pleased with the expeditious manner in which this case was heard and determined as it was obviously in the public interest to have this matter dealt with very quickly.”



About the case




When the lawsuits were initially brought before High Court Judge Mira Dean-Armorer, it was agreed during a preliminary hearing the trio’s lawsuits (Ferguson, Edoo and Maritime) would be used as a test case, which would decide the fate of the other applicants. Dean-Armorer, in judgment delivered in April, 2013, dismissed all the grounds raised by the applicants, paving the way for the appeal.

On June 4, 2014, the Appeal Court upheld Dean-Armorer’s ruling.

The appeal panel—Judges Allan Mendonca, Peter Jamadar and

Gregory Smith, in a 57-page ruling, dismissed the grounds raised by the businessmen and companies challenging the repeal of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011.


http://www.trinidadexpress.com/news/DPP ... 07541.html

pugboy
TunerGod
Posts: 25284
Joined: September 6th, 2003, 6:18 pm

Re: Ish/Steve.... Update "May Go Free"

Postby pugboy » February 23rd, 2015, 7:26 am

So Anand in addition to issuing extradition on a yankee holiday and in addition to asking a man to drop a witness statement about section 34
he ask the DPP to delay their trial ?

16 cycles
3ne2nr Toppa Toppa
Posts: 5526
Joined: May 10th, 2003, 9:25 am

Re: Ish/Steve.... Update "May Go Free"

Postby 16 cycles » February 23rd, 2015, 7:55 am

october 2015 still too far away...

User avatar
RASC
TriniTuner 24-7
Posts: 8338
Joined: February 6th, 2004, 11:00 am

Re: Ish/Steve.... Update "May Go Free"

Postby RASC » February 23rd, 2015, 7:55 am

These Sheep will defend this to the end. The end is near.

User avatar
rfari
TriniTuner 24-7
Posts: 19168
Joined: September 27th, 2009, 11:20 am
Contact:

Re: Ish/Steve.... Update "May Go Free"

Postby rfari » February 23rd, 2015, 8:38 am

Definitely movie material. Not sure if its ish and Steve political link locally or unc narco link internationally that have the govt bending backwards to save dem

pugboy
TunerGod
Posts: 25284
Joined: September 6th, 2003, 6:18 pm

Re: Ish/Steve.... Update "May Go Free"

Postby pugboy » February 23rd, 2015, 4:23 pm

a full trilogy could be made
how a couple fellas could do bobol and outlast 2 election terms to get their party back in power to save them is beyond any stretch of imagination

User avatar
j.o.e
Trying to catch PATCH AND VEGA
Posts: 6828
Joined: October 5th, 2008, 8:56 pm
Location: On tuner

Re: Ish/Steve.... Update "May Go Free"

Postby j.o.e » February 23rd, 2015, 5:01 pm

These guys have the Gov't in their pocket

Crackpot
I LUV THIS PLACE
Posts: 1098
Joined: June 2nd, 2009, 7:17 pm

Re: Ish/Steve.... Update "May Go Free"

Postby Crackpot » February 23rd, 2015, 8:58 pm

j.o.e wrote:These guys have the Gov't in their pocket


You looking for corn, go ahead :|

User avatar
shogun
TriniTuner 24-7
Posts: 14208
Joined: May 6th, 2008, 12:24 pm
Location: Gone Rogue.

Re: Ish/Steve.... Update "May Go Free"

Postby shogun » February 23rd, 2015, 11:46 pm

pugboy wrote:how a couple fellas could do bobol and outlast 2 election terms to get their party back in power to save them is beyond any stretch of imagination


The answer is in the question.

User avatar
RASC
TriniTuner 24-7
Posts: 8338
Joined: February 6th, 2004, 11:00 am

Re: Ish/Steve.... Update "May Go Free"

Postby RASC » February 24th, 2015, 5:41 pm

rfari wrote:Definitely movie material. Not sure if its ish and Steve political link locally or unc narco link internationally that have the govt bending backwards to save dem


We may never be sure.
One thing is certain tho, it cost them this election.
UNC will never be allowed back into power in this country.

Section 34 is what binds all this foolishness together. Everything makes sense when you follow that trail. From Dana, to Anand, FBI SIS...everything. Party Done. Full Stop.

User avatar
The_Honourable
TriniTuner 24-7
Posts: 8473
Joined: June 14th, 2009, 3:45 pm
Location: In the Land of Stupidity & Corruption

Re: Ish/Steve.... Update "May Go Free"

Postby The_Honourable » October 21st, 2015, 8:47 am

SECTION 34 OUTRAGE

IT WAS a desire to appease major public outrage over the possibility that the Piarco Airport fraud accused would escape criminal prosecution, which led to the repeal of the controversial Section 34 of the Administration of Justice (Indictable Proceedings) Act.

This desire, according to British Queen’s Counsel Michael Beloff, who is seeking the interest of Maritime General — a company which sought freedom from prosecution under the controversial clause — was unfair and in violation of the Constitution as it targeted two persons, businessmen Ishwar Galbaransingh and Steve Ferguson.

Read More: http://www.newsday.co.tt/news/0,218698.html


Ish/Steve, not specific targets

DEFENDANTS in the Piarco airport prosecutions — Ishwar Galbaransingh and Steve Ferguson — may have been the ‘‘trigger’’ for the repeal of Section 34 of the Administration of Justice (Indictable Proceedings) Act, but they were not the specific ‘‘targets’’ of the legislature.

In fact, according to British Queen’s Counsel Peter Knox, who is leading the case for the Attorney General in the constitutional claim filed by three of the 26 persons, who sought freedom from prosecution under Section 34, the original law was not ‘‘good law.” He also submitted that the motive of the legislature in amending the Act, was irrelevant.

Read More: http://www.newsday.co.tt/crime_and_court/0,218759.html

User avatar
The_Honourable
TriniTuner 24-7
Posts: 8473
Joined: June 14th, 2009, 3:45 pm
Location: In the Land of Stupidity & Corruption

Re: Ish/Steve.... Update "May Go Free"

Postby The_Honourable » October 21st, 2015, 10:10 pm

Attorneys wrap up: Law Lords to decide now*
Appeal to privy Council of repeal of Section 34...

THE Judicial Committee of the Privy Council (JCSC) in London, England, has reserved judgment in the appeal of the controversial repeal of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011.

A date has not been announced.

This comes after attorneys representing both the State and appellants, Steve Ferguson and Ameer Edoo along with three companies, yesterday completed their submissions before a five-member panel of British Law Lords over a three-day period.
Should the JCSC rule in favour of Ferguson and Edoo, this would bind the High Court in Port of Spain into considering the applications made by them prior to the section of law being repealed to have their series of fraud-related charges dismissed in accordance with Section 34.

Source: http://www.trinidadexpress.com/20151021 ... decide-now

User avatar
rfari
TriniTuner 24-7
Posts: 19168
Joined: September 27th, 2009, 11:20 am
Contact:

Re: Ish/Steve.... Update "May Go Free"

Postby rfari » October 21st, 2015, 10:11 pm

I hope ish and Steve GT

dredman1
Riding on 18's
Posts: 1794
Joined: October 7th, 2005, 10:47 pm

Re: Ish/Steve.... Update "May Go Free"

Postby dredman1 » January 25th, 2016, 1:31 pm

http://m.guardian.co.tt/news/2016-01-25 ... peal-legal

Home
MenuTrinidad & Tobago Guardian Online
Privy Council rules: Section 34 repeal legal



Derek Achong
Published:
Monday, January 25, 2016

The Privy Council has ruled the repeal of the controversial Administration of Justice (Indictable Offences) Act was lawful.

Delivering a 19 page judgement at the United Kingdom's Supreme Court in London this morning, five law lords of the Privy Council stated that Parliament did not act illegally when it moved to repeal the legislation almost two weeks after it was proclaimed on August 31, 2012.

Their decision clears the way for a dozen people and companies accused of fraud arising out of the construction of the Piarco International Airport, who sought to use the short lived legislation to have the protracted cases automatically dismissed, to eventually go on trial.

It is consistent with consecutive rulings from High Court Judge Mira Dean-Armourer and the local Court of Appeal who had previous rejected the constitutional motion lawsuits brought by businessmen Ameer Edoo and Steve Ferguson and insurance company Martime General. The trio's lawsuits were used a test case which decides the fate of all 42 people and companies which applied under section 34 of the act before the repeal.

The clause gave people, whose trials for specific offences had not started after ten years after the crime was committed, the right to apply to have the case dismissed.

In their lawsuits the applicants claimed that Parliament infringed upon the judicial independence as by repealing the law, it removed the court's power to determine cases already filed before it. The Privy Council, in their judgement, rejected this notion as it ruled that the move by Parliament to correct its "oversight" on the effect of the clause was legal and did not infringe the applicants constitutional rights.

User avatar
Allergic2BunnyEars
TriniTuner 24-7
Posts: 7784
Joined: September 15th, 2011, 12:32 am

Re: Ish/Steve.... Update "May Go Free"

Postby Allergic2BunnyEars » January 25th, 2016, 2:23 pm

http://www.trinidadexpress.com/20160125 ... -34-appeal

Privy Council dismisses Section 34 appeal


Image

The Privy Council in London has ruled for the State in the Section 34 appeal brought by Steve Ferguson, Ameer Edoo & Maritime Life (Caribbean) Limited.

It now clears the way for several people and entities who had benefitted from the Section 34 law, to go on trial.

Section 34, which was proclaimed on August 31, 2012, had allowed individuals who were charged with particular offences to have the cases dismissed if the trial did not start after ten years after the charges were laid.

The Section required the accused to apply to the High Court to have the matters dismissed, and more than 40 applicants petitioned the Court.

However, before the applications were considered by the High Court, Parliament repealed the section of law on September 12, 2012.

Even though some of the other accused, including businessman Ishwar Galbaransingh, had made applications, only Ferguson, Edoo and the companies challenged the repeal by filing constitutional motions.

Their case was used as a test case that, if it succeeded, would have paved the way for the other accused to also have their matters dismissed.

However, High Court judge Mira Dean-Armorer ruled against the applicants by dismissing all eight grounds argued in the lawsuits.

In the Court of Appeal, that court upheld the ruling of Justice Dean-Armorer and dismissed the appeals.

The application then petitioned to Privy Council, and the case was argued in London last August with judgement delivered today.

Ferguson, Edoo and the companies argued that Parliament’s decision to repeal the Section while the applications were before the court was in breach of the constitutional principle of the separation of powers.

The application also claimed that the Director of Public Prosecutions Roger Gaspard SC overstepped his constitutional authority by advocating against the Section 34 clause after it was proclaimed.

The following in the full judgment

JUDGMENT

Steve Ferguson (Appellant) v The Attorney General of Trinidad and Tobago (Respondent)

Maritime Life (Caribbean) Limited and others (Appellants) v The Attorney General of Trinidad and Tobago (Respondent)

Ameer Edoo (Appellant) v The Attorney General of Trinidad and Tobago (Respondent)

From the Court of Appeal of the Republic of Trinidad and Tobago

before

Lord Neuberger

Lord Mance

Lord Sumption

Lord Carnwath

Lord Hughes

JUDGMENT GIVEN ON

25 January 2016

Heard on 19, 20 and 21 October 2015

Appellants (1st, 3rd, 4th and 5th)

Respondent (Attorney General of Trinidad and Tobago)

Michael J Beloff QC

Peter Knox QC

Fyard Hosein SC

Tom Richards

Rishi Dass

Annette Mamchan

James Segan

(Instructed by Peters & Peters Solicitors LLP)

(Instructed by Charles Russell Speechlys)

Appellant (2nd)

Michael Fordham QC

Sophia Chote SC

Vijai Deonarine

Nesha Abiraj (instructing attorney)

(Instructed by Peters & Peters Solicitors LLP)

Interested Party (Director of Public Prosecutions)

Ian L Benjamin

Samson Wong

Amirah Rahaman

Nalini Jagnarine

(Instructed by Charles Russell Speechlys)

Appellants: (1) Steve Ferguson

(2) Ameer Edoo

(3) Maritime Life (Caribbean) Limited

(4) Maritime General Insurance Company Limited

(5) Fidelity Finance and Leasing Company Limited

Page 1

LORD SUMPTION:

1. This appeal arises out of an ill-fated attempt to introduce a statutory limitation period for criminal prosecutions in Trinidad and Tobago. The relevant statutory provision was in force for only two weeks before it was retrospectively repealed by a fresh Act of Parliament. These proceedings have been brought by a number of persons who would have been entitled to the benefit of limitation but for the repeal. Their case, in summary, is that the repeal was unconstitutional because it was a retrospective abrogation of vested rights, a legislative intrusion on the judicial function and directed specifically against the defendants in particular criminal proceedings. They also say that in the light of the prosecutor’s involvement in promoting the repeal, the continuance of the prosecution would be an abuse of process.

The facts

2. The Administration of Justice (Indictable Proceedings) Act 2011 (the “Principal Act”), received Presidential assent on 16 December 2011. Section 34(2) of that Act provided (so far as relevant) that once ten years had passed from the date when an offence was alleged to have been committed, no proceedings were to be instituted for that offence and no trial for that offence was to be commenced. Under section 34(3), where criminal proceedings had been instituted or an accused had been committed for trial, whether before or after the commencement of the Act,

“… a judge shall, on an application by the accused, discharge the accused and record a verdict of not guilty if the offence is alleged to have been committed on a date that is ten years or more before the date of the application.”

There were exceptions for persons accused of offences of violence, sexual offences and drug trafficking offences specified in Schedule 6 of the Act and for cases in which the defendant had evaded justice. Section 1(2) of the Act provided that it was to come into force on a date fixed by the President by proclamation.

3. It had originally been intended to bring the Principal Act into force on 2 January 2013. However, in August 2012, the Minister of Justice proposed to advance the timetable, bringing certain sections into force earlier, including section 34. The Cabinet approved that proposal, and as a result a proclamation was published on 28 August bringing section 34 into force with effect from 31 August.

Page 2

4. At that time there were at least 47 current prosecutions at various stages of progress towards trial for offences more than ten years old. These included two prosecutions known as “Piarco 1” and “Piarco 2”. These cases had aroused strong feelings in Trinidad and Tobago for some years. They arose out of serious allegations of corruption in connection with the construction of Piarco International Airport in Trinidad. In summary, what was alleged was that the defendants had conspired to defraud the state of more than TT$1 billion by rigging the award of the construction contracts. The defendants in Piarco 1 included Mr Steve Ferguson, the first appellant, and two companies, the fourth and fifth appellants. They had been charged in March 2002 with common law conspiracy to defraud and offences under the Proceeds of Crime Act, the Prevention of Corruption Act and the Larceny Act, said to have been committed between 1996 and 2000. The defendants in Piarco 2 include all the present appellants. They had been charged in May 2004 with similar offences, said to have been committed between 1995 and 2001. Other defendants not party to the present appeals include the then Minister of Works and Transport, a senior civil servant in his ministry and two chairmen of the Airports Authority. The Piarco cases are said by the DPP to be the largest complex fraud and corruption cases ever prosecuted in the Caribbean Commonwealth.

5. The committal proceedings were very long drawn-out, partly because of the complexity of the facts and partly because they involved a great deal of oral and documentary evidence and frequent adjournments. Those in Piarco 2 have still not been concluded. In 2006, while they were in progress, the United States had begun proceedings for the extradition of Mr Ferguson and one of his co-defendants, Mr Galbaransingh, to face trial in the United States on charges of money laundering and conspiracy to commit wire fraud arising out of the alleged manipulation of the bid process for the construction of the airport. The Attorney General ordered their extradition in October 2010, but his order was quashed by the High Court (Boodoosingh J) 13 months later, on the ground that the underlying allegations were substantially the same as those made in the prosecutions in Trinidad and Tobago and that it was in the public interest that they should be tried there.

6. On 6 September 2012, a week after section 34 of the Principal Act had come into force, one of the appellants’ co-defendants, Mr Maharaj, applied to the High Court for a discharge under section 34(3). As it happened, on the following day, there was a hearing before the magistrate in the ongoing committal proceedings in Piarco 2. At the hearing the DPP drew the magistrate’s attention to Mr Maharaj’s application and asked for an adjournment of the committal proceedings for a week so that (in the words of his affidavit) he could “properly consider how the prosecution of Piarco 2 might progress in the light of section 34”. The application was not opposed, and the magistrate adjourned until 14 September. Between 7 and 12 September, all of the present appellants lodged applications in the High Court under section 34(3). During the period of the adjournment, further applications were made under section 34(3), bringing the total number of such applications to about 42.

Page 3

7. Once it was appreciated that the effect of bringing section 34 of the Act of 2011 into force was to entitle the Piarco defendants to a discharge without trial, there was a major public outcry. On 10 September the DPP wrote to the Attorney General complaining about the decision to bring section 34 into force. He said that he had not been consulted about it and was concerned that its effect was to prevent a trial of the Piarco defendants. He summarised the history of the Piarco prosecutions, the scale of the preparations for trial and the failed US extradition proceedings against Mr Ferguson and Mr Galbaransingh. He pointed out that one of the American defendants, a Mr Birk, had made a confession and would have pleaded guilty, giving evidence against the other defendants at the trial. He concluded:

“I am sure that you would be as concerned as I am that the public would lose confidence in the criminal justice system if the proceedings against these defendants are summarily brought to an end in this way rather than by a trial in the Supreme Court of Judicature of Trinidad and Tobago, about which you expressed such confidence in December 2011.

I would invite you to consider taking the following courses of action as a matter of extreme urgency to redeem what clearly must be the unintended consequences of the Proclamation of section 34 of the Act by the President on Independence Day:

1. Repeal section 34 of the Act with retroactive effect.

2. Alternatively,

(a) Bring into operation section 27(4) of the Act by proclamation.

(b) By Ministerial Order amend Schedule 6 to include the types of offences charged in Piarco No 1 and No 2.”

Section 27(4) empowered the minister to amend Schedule 6 by statutory instrument.

8. On 11 September 2012, the DPP issued a press release in which he criticised section 34 and the timing of the proclamation bringing it into force. He complained that he had had only limited involvement in the decision to introduce section 34 into the Act and none at all in the decision to bring it into force. He also referred to the difficult

Page 4

position in which he had been placed in view of the ground on which the US extradition application had been rejected. He concluded:

“Hopefully the situation can still be retrieved and the ramparts of the state’s right to prosecute these matters remain intact as they properly should.”

9. On the same day, the Attorney General called the Prime Minister and told her that in his opinion section 34 should be repealed urgently. There were further discussions on that day between the Attorney General and the DPP, in the course of which the DPP urged him that any repeal would have to be retrospective if it was to affect the Piarco defendants. On 12 September, the DPP sent the Attorney General a draft bill to effect the repeal. On the same day, Parliament was recalled in emergency session. That afternoon, the Attorney General introduced the Administration of Justice (Indictable Proceedings) (Amendment) Bill in the House of Representatives. It was similar although not identical to the DPP’s draft. The Attorney General made no secret of the fact that the immediate problem was the Piarco prosecutions. But he also pointed out that other current prosecutions were affected, as well as a number of current criminal investigations, some of them involving serious offences, including at least five other cases of alleged corruption. The bill was passed on the same day by the House and on the following day by the Senate. It received presidential assent on 14 September and was proclaimed at once. The Board will refer to it as the “Amending Act”.

10. It provided as follows:

“2. This Act is deemed to have come into force on 16 December, 2011.

3. In this Act, ‘the Act’ means the Administration of Justice (Indictable Proceedings) Act, 2011.

4. This Act shall have effect even though inconsistent with sections 4 and 5 of the Constitution.

5. Section 34 of the Act is repealed and deemed not to have come into effect.

6. (1) Notwithstanding any law to the contrary, all proceedings under the repealed section 34 which were pending before any court

Page 5

immediately before the date of assent of this Act shall, on the coming into force of this Act, be void.

(2) In this section and section 7, ‘repealed section 34’ means section 34 of the Act which is repealed by section 5.

7. Notwithstanding any law to the contrary, no rights, privileges, obligations, liabilities or expectations shall be deemed to have been acquired, accrued, incurred or created under the repealed section 34.”

11. The present appeals are test cases selected from a larger number of constitutional motions lodged in the High Court during September and October 2012. The challenge to the Amending Act was mounted on five grounds:

(1) It was contrary to the principle of the separation of powers.

(2) It was specifically directed against the Piarco defendants, in particular those who had made applications under section 34(3) of the 2011 Act. As such, it constituted an interference by the state with the defendants’ right to a fair trial and was contrary to the rule of law.

(3) It offended against section 4(a) of the Constitution, which protects “the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law”.

(4) It conflicted with the defendants’ legitimate expectation that proceedings against them would be concluded at once.

(5) The continued prosecution of the appellants was an abuse of process because the DPP, by actively promoting the repeal of the 2011 Act, was acting contrary to the conventions governing the conduct of a prosecutor.

12. It will be apparent that there is a considerable measure of overlap between the first four grounds. The complaint that the legislation was targeted at the appellants is in reality an allegation that the separation of powers has been disregarded. The rule of law is an overarching principle that encompasses all four grounds. All of them, moreover, are put forward as grounds for annulling the Amending Act as exceeding the constitutional powers of the legislature. The fifth ground is different. It assumes the

Page 6

validity of the Amending Act but contends that the conduct of the DPP made it abusive even so for him to proceed with the prosecutions.

13. The motions were dismissed by Dean-Armorer J and on appeal by the Court of Appeal (Mendonça, Jamadar and Smith JJA).

General principles: the separation of powers

14. Constitutional instruments fall to be interpreted in the light of a number of fundamental principles which are commonly left unstated but are inherent in a democracy and in conventions inherited from the period before they were adopted. The Constitution of Trinidad and Tobago follows what has been called the “Westminster model”. It was adopted in 1976 when the country became a republic, but its essential features were derived from the previous Constitution adopted at the time of independence in 1962. They have subsisted through the various amendments that have been made since 1976. Trinidad and Tobago is, as the first article of its Constitution proclaims, a “sovereign democratic state”. Its constitution provides separately for the existence and functions of the principal institutions of the state: legislature, executive and judiciary. It gives the force of law to constitutional arrangements concerning the relations between which in the United Kingdom have generally been governed by convention rather than law. It also entrenches certain fundamental rights and freedoms identified in section 4.

15. One of the fundamental principles of the Constitution is the qualified separation of powers. It is qualified because the “Westminster model” has never required an absolute institutional separation between the three branches of the state. But the relations between them are subject to restrictions on the use of its constitutional powers by one branch in a manner which interferes with the exercise of their own powers by the others. In Hinds v The Queen [1977] AC 195, 212-213 Lord Diplock, speaking of the Constitution of Jamaica, said:

“… a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in the new constitution of a governmental structure which makes provision for a legislature, an executive and judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government. Thus the constitution does not normally contain any express prohibition upon the exercise of legislative powers by the executive or of judicial powers by either the executive or the legislature. As respects the judicature, particularly if it is intended that the previously existing courts shall continue to function, the

Page 7

constitution itself may even omit any express provision conferring judicial power upon the judicature. Nevertheless it is well established as a rule of construction applicable to constitutional instruments under which this governmental structure is adopted that the absence of express words to that effect does not prevent the legislative, the executive and the judicial powers of the new state being exercisable exclusively by the legislature, by the executive and by the judicature respectively. …

All Constitutions on the Westminster model deal under separate Chapter headings with the legislature, the executive and the judicature. The Chapter dealing with the judicature invariably contains provisions dealing with the method of appointment and security of tenure of the members of the judiciary which are designed to assure to them a degree of independence from the other two branches of government …. What … is implicit in the very structure of a Constitution on the Westminster model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Chapter dealing with the judicature, even though this is not expressly stated in the Constitution: Liyanage v The Queen [1967] 1 AC 259, 287-288.”

The separation between the exercise of judicial and legislative or executive powers has been described as a “characteristic feature of democracies”: R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 at para 50 (Lord Steyn); Director of Public Prosecutions of Jamaica v Mollison [2003] 2 AC 411 at para 13 (Lord Bingham of Cornhill). In Seepersad v Attorney General of Trinidad and Tobago [2013] 1 AC 659, Lord Hope of Craighead applied these principles to the Constitution of Trinidad and Tobago. He observed at para 10:

“The separation of powers is a basic principle on which the Constitution of Trinidad and Tobago is founded. Parliament cannot, consistently with that principle, transfer from the judiciary to an executive body which is not qualified to exercise judicial powers a discretion to determine the severity of the punishment to be inflicted upon an offender. The system of public law under which the people for whom the Constitution was provided were already living when it took effect must be assumed to have evolved in accordance with that principle.”

Page 8

Due process and the rule of law

16. As applied to the autonomy of judicial functions, the separation of powers is an aspect of the rule of law. Recital (d) of the Constitution of Trinidad and Tobago recognises that “men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law”. Section 4 gives effect to individual rights founded on the rule of law. It provides for “the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law”.

17. Like other provisions of sections 4 and 5 protecting fundamental human rights and freedoms, the right to due process may be overridden only under the procedure provided for by section 13. This allows for the enactment of legislation which is expressly inconsistent with sections 4 or 5, provided that it has been passed by a majority of three fifths of all the members of each house of Parliament, and that it is “reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual”. The Amending Act was expressed to have effect even though inconsistent with sections 4 and 5 of the Constitution: section 4. It was also passed with the requisite three fifths majority in each house.

18. What is comprised in due process has never been exhaustively defined. But it has always been taken to include the resolution of justiciable issues by courts of law without interference by the executive or the legislature. The classic statement of the principle is that of Lord Millett, giving the advice of the Board in Thomas v Baptiste [2000] 2 AC 1, 21-24. The Board declared unconstitutional administrative instructions published by the government of Trinidad and Tobago which laid down time limits for the execution of sentences of death, on the ground that it was contrary to the due process clause in the Constitution. This was because the time limits applied irrespective of any pending petition to the Inter-American Commission on Human Rights under an international treaty to which the state was party. Lord Millett said, at pp 21H-22A, 23D-E, 24C:

“The due process clauses in the Fifth and Fourteenth Amendments underpin the doctrine of the separation of powers in the United States and serve as a cornerstone of the constitutional protection afforded to its citizens. Transplanted to the Constitution of Trinidad and Tobago, the due process clause excludes legislative as well as executive interference with the judicial process. … The right for which [the Appellants] contend is not the particular right to petition the commission or even to complete the particular process which they initiated when they lodged their petitions. It is the general right accorded to all litigants not to have the outcome of any pending appellate or other legal process pre-empted by

Page 9

executive action. This general right is not created by the Convention; it is accorded by the common law and affirmed by section 4(a) of the Constitution. ... [T]he right to be allowed to complete a current appellate or other legal process without having it rendered nugatory by executive action before it is completed is part of the fundamental concept of due process.”

Ad hominem legislation

19. The paradigm case of a statute which infringes both the separation of powers and the due process clause is a bill of attainder. Bills of attainder were legislative acts which convicted a person of an offence. The drafters of the United States Constitution forbade either the federal or the state legislatures to pass such bills, as a mark of disapproval of what they supposed to be the practice by the British Parliament, although in fact bills of attainder were already becoming obsolete in Britain. The last attempt to pass one was the Bill of Pains and Penalties of 1820, which sought to divorce Queen Caroline from the King and forfeit her titles and property on the ground of her adultery. It was highly controversial and was ultimately withdrawn before completing its passage through Parliament.

20. The objection to a bill of attainder is the same as the objection to any exercise by the legislature of an inherently judicial function. It does not have the essential attribute of law, which is its generality of application. The first requisite of a law, wrote Blackstone (Commentaries, Introduction, Section II), is that

“… it is a rule: not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason: this has permanency, uniformity, and universality, and therefore is properly a rule.”

21. This passage from Blackstone was cited by Lord Pearce, giving the advice of the Privy Council in Liyanage v The Queen [1967] AC 259, 291, which is the leading modern authority for the proposition that under a written constitution based on the separation of powers, the legislature may not determine by statute the outcome of particular judicial proceedings. The facts were that in January 1962 there had been an abortive coup d’état in Ceylon, which had been discovered and frustrated by the

Page 10

government at the last minute. A large number of individuals alleged to be responsible were arrested. Two months later, the Parliament of Ceylon passed legislation which authorised the detention without warrant of persons suspected of having waged war or conspired to wage war against the state, modified the elements of the offence, the mode of trial and the rules of evidence applicable to it, and prescribed a heavy minimum sentence for those convicted. The Act was expressed to be retrospective so as to cover an abortive coup d’état before it was passed. It also contained a sunset clause providing that it would cease to have effect after a year or (if later) after the conclusion of any legal proceedings arising from an offence against the state committed at about the time of the attempted coup. The Privy Council held the Act to be unconstitutional. Lord Pearce said at pp 289-290

“It goes without saying that the legislature may legislate, for the generality of its subjects, by the creation of crimes and penalties or by enacting rules relating to evidence. But the Acts of 1962 had no such general intention. They were clearly aimed at particular known individuals who had been named in a White Paper and were in prison awaiting their fate. … That the alterations in the law were not intended for the generality of the citizens or designed as any improvement of the general law is shown by the fact that the effect of those alterations was to be limited to the participants in the January coup and that, after these had been dealt with by the judges, the law should revert to its normal state.

But such a lack of generality in criminal legislation need not, of itself, involve the judicial function, and their Lordships are not prepared to hold that every enactment in this field which can be described as ad hominem and ex post facto must inevitably usurp or infringe the judicial power. Nor do they find it necessary to attempt the almost impossible task of tracing where the line is to be drawn between what will and what will not constitute such an interference. Each case must be decided in the light of its own facts and circumstances, including the true purpose of the legislation, the situation to which it was directed, the existence (where several enactments are impugned) of a common design, and the extent to which the legislation affects, by way of direction or restriction, the discretion or judgment of the judiciary in specific proceedings.”

Separation of powers: the test

22. Legislation may impinge upon judicial proceedings either directly or indirectly. Different considerations apply to each kind of interference.

Page 11

23. Legislation impinges directly on judicial proceedings if the statute itself amounts to the exercise of an inherently judicial power. This may, for example, be because it determines innocence or guilt or the penalty to be imposed (see Nicholas v The Queen (1998) 193 CLR 173, esp at paras 15-16 (Brennan J), 74 (Gaudron J), 112-114 (McHugh J)), or it determines whether bail is to be granted (State of Mauritius v Khoyratty [2007] 1 AC 80); or it directs a court not to order the release from custody of “designated persons” who had entered Australia without valid entry permits (Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1); or it authorises the exercise of a sentencing power by a third party such as an officer of the executive (Seepersad v Attorney General of Trinidad and Tobago [2013] 1 AC 659); or it pre-empts the outcome of judicial proceedings, like the timetable for executing sentences of death challenged in Thomas v Baptiste, supra. Direct interference with judicial proceedings is usually inherently contrary to the separation of powers and the rule of law. It is also a denial of due process.

24. Direct interference with judicial proceedings is, however, rare. More commonly, legislation impinges on them indirectly by altering general rules of law in a manner which will in practice determine the outcome of particular proceedings or of particular issues in those proceedings, for example by changing the elements of an offence or a tort, or abrogating a special defence, or altering the rules of evidence or a relevant period of limitation, without any transitional provisions to ensure that current proceedings are unaffected. This kind of legislation gives rise to more difficult problems. It is general, not particular. In Blackstone’s terms it is a law, not a sentence. There is, it is true, a presumption against retrospectivity, especially where the effect is to abrogate vested rights. But this is no more than a principle of construction. Once it is established as a matter of construction, mere retrospectivity does not violate the separation of powers or the rule of law, and is not contrary to due process. It is after all characteristic of all developments of the common law arising from judicial decisions. As Mason CJ observed in Polyukhovich v Commonwealth of Australia (1991) 172 CLR 501, 536, “if the law, though retrospective in operation, leaves it to the courts to determine whether the person charged has engaged in the conduct complained of and whether that conduct is an infringement of the rule prescribed, there is no interference with the exercise of judicial power”.

25. In Australia, it has been held that legislation which indirectly impinges upon judicial proceedings by altering rights or defences in pending litigation without interfering with the judicial process itself is valid, even if it is nominatively directed at a single person and pre-empts current proceedings to which that person is a party. The principal decisions to this effect are Australian Building Construction Employees’ and Builders Labourers’ Federation v The Commonwealth of Australia (1986) 161 CLR 88, esp at pp 96-97 and Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372. In these cases the Plaintiff Trade Union had been struck off a statutory register by ministerial order. While an appeal was pending, legislation was enacted deregistering the union by name. Accordingly, the legislation not only impinged on current judicial

Page 12

proceedings but did so in a manner which was as ad hominem as it is possible for legislation to be. Nonetheless it was held to be valid. The court distinguished between a case where legislation directed what a court should do, and a case where it pre-empted the court’s decision by ordaining the result regardless of what the court did. As the principal judgment put it in the former case, “Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution” (p 96, per Gibbs CJ, Mason, Brennan, Deane and Dawson JJ). This reasoning may reflect the particular characteristics of the Australian federal constitution, which protects the autonomy of the judiciary without limiting more generally the sovereignty of Parliament. But in the Board’s view it is too widely stated to be true of the Constitution of Trinidad and Tobago and comparable written constitutions of the common law world. Legislation which alters the law applicable in current legal proceedings is capable of violating the principle of the separation of powers and the rule of law by interfering with the administration of justice, but something more is required before it can be said to do so. The “something more” is that the legislation should not simply affect the resolution of current litigation but should be ad hominem, ie targeted at identifiable persons or cases.

26. Legislation may be framed in general terms as an alteration of the law and yet be targeted in this way. The legislation considered in Liyanage was framed in general terms. It would have been valid if its operation had been wholly prospective. What made it invalid was the combination of three factors: (i) it influenced or determined how inherently judicial functions would be exercised, notably in the matter of the admission of evidence and the minimum sentence; (ii) it was retrospective in the sense that it applied to current judicial proceedings; and (iii) the sunset clause and the fact that the legislation dealt with specific issues in the criminal proceedings against the plotters of the coup. The critical factor was the third, without which the first two might have been unobjectionable. This was because it showed that the statute was directed at identifiable people or groups of people. The Board considers that targeting of that kind is the least that must be shown if it is contended that a statute which merely alters the law violates the principle of the separation of powers or the rule of law by impinging on the judicial function.

27. How is the court to ascertain a more specific purpose behind an Act of Parliament than its general terms would suggest? Although this question commonly arises in politically controversial cases, in the Board’s opinion the answer does not depend on an analysis of its political motivation. The test is objective. It depends on the effect of the statute as a matter of construction, and on an examination of the categories of case to which, viewed at the time it was passed, it could be expected to apply. Liyanage itself is the classic illustration. The Board’s conclusion in that case was that the legislation applied to a category of persons and cases which was so limited as to show that the real object was to ensure the conviction and long detention of those currently accused of plotting the coup. The reason why in such circumstances as these the statute will be unconstitutional is that the Constitution, like most fundamental law, is concerned with the substance and not (or not only) with the form. There is no principled distinction

Page 13

between an enactment which nominatively designates the particular persons or cases affected, and one which defines the category of persons or cases affected in terms which are unlikely to apply to anyone else. In both cases, it may be said, as Lord Pearce said in Liyanage (p 290) that “the legislation affects by way of direction or restriction the discretion or judgment of the judiciary in specific proceedings”.

28. Although approaching the issue from a different juridical tradition, the European Court of Human Rights has applied a similar principle in dealing with the circumstances in which a law couched in general terms may violate the right to a fair trial protected by article 6 of the European Convention. In Stran Greek Refineries and Stratis Andreadis v Greece (1994) 19 EHRR 293 it held that Greek legislation couched in general terms violated article 6 because it was passed in circumstances where it was evidently directed at determining the outcome of particular current proceedings between the state and the applicants: see paras 47, 49-50. In its subsequent decision in National & Provincial Building Society v United Kingdom (1997) 25 EHRR 127, at para 112, the court pointed out that not all legislation which affects pending proceedings violates article 6, and identified as the critical factors in Stran that the state had been engaged for nine years in litigation with the applicants, who had actually obtained an enforceable judgment against it. As the decision in that case illustrates, the mere fact that legislation retrospectively makes proceedings unwinnable is not enough to establish a violation of article 6. In Zielinski v France (1999) 31 EHRR 532, para 57, the court put the same point in this way:

“… while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in article 6 preclude any interference by the legislature - other than on compelling grounds of the general interest - with the administration of justice designed to influence the judicial determination of a dispute.”

Application to the present case

29. On 14 September 2012, immediately before the Amending Act was passed, the appellants enjoyed under section 34 of the Principal Act a vested legal right (i) not to be tried in the criminal proceedings which had been brought against them, and (ii) on application to the High Court to be discharged and have a verdict of not guilty entered in their favour. The effect of the latter right was that the passing of ten years from the alleged offence fell to be treated as an absolute defence. Accordingly, the effect of the Amending Act was to remove an accrued and unanswerable defence.

Page 14

30. The first question is whether the repeal directly interfered with current criminal proceedings against the appellants in a manner inconsistent with the separation of powers. In the Board’s opinion it did not. Section 5 simply altered the general law, by restoring it to what it had been before 31 August 2012. Section 6 on the face of it comes closer to being a direct interference with judicial proceedings, because it legislatively annulled valid applications by which the appellants had invoked the statutory jurisdiction of the High Court during the brief interval when section 34 was in force. But section 6 must be viewed in the context of the whole Act. Section 5 on its own would have been enough to achieve the legislator’s purpose of ensuring that no one would be able to take advantage of the ten-year limitation period, since it deems section 34 never to have come into effect. Section 6 adds emphasis but nothing more. It is in reality a consequential procedural provision designed to ensure that effect was given to section 5 across the board, irrespective of the stage which those affected had reached in their attempts to take advantage of the repealed provision. Far from indicating the special character of the Amending Act, it underlines its generality. Parliament, having resolved upon a comprehensive repeal, could not sensibly have contemplated an arbitrary distinction between those who had been quick enough to make their applications during the brief period of a fortnight when section 34 was in force and those who had not, two categories whose position was for all practical purposes the same.

31. It follows that the challenge to the Amending Act on this ground can succeed only if it is shown that the terms, although framed generally, would in practice apply only to a limited category of people including the appellants against whom it can be said to have been targeted. But this is manifestly not the case. The Amending Act not only looks like general legislation. It is general legislation. It affects all cases to which section 34 would otherwise apply, past, present or future. This includes a very large number of persons and cases against which it cannot have been targeted. It is right to add that if the concern had been only or mainly with the appellants, the logical course would have been to amend Schedule 6 so as to add the offences with which they were charged to the list of those excluded from section 34. That was one of the options proposed by the DPP but it was not the one adopted.

32. There is no doubt that the outcry which followed the realisation that section 34 would entitle the Piarco defendants to a summary acquittal without trial, together with the concerns of the DPP, were the occasion for its repeal. But it does not follow that the Amending Act was targeted at the appellants. Sometimes the facts of a particular case simply exemplify the need for a general law.

33. Mr Beloff QC, who appeared for the appellants, sought to surmount this difficulty by extensive reference to the debates in Parliament which preceded the repeal. In the Board’s opinion these debates, read as a whole, do not support his case. On the contrary, they tend to confirm the impression left by the background circumstances, that the perceived impact of section 34 on the Piarco prosecutions was no more than the

Page 15

occasion for an altogether more general concern about the wisdom of the section. But there is a more fundamental reason for disregarding this material. Parliamentary debates may be admissible to prove facts from which the mischief of an enactment can be inferred, if this is not apparent from its terms. But that is not the purpose for which Mr Beloff is in reality seeking to use it. He relies on the debates as evidence of the motives of the legislators who spoke. This could be justified only if the Constitution posed questions which had to be answered by reference to the state of mind of individual Parliamentarians. In the Board’s opinion, it does not. The test being objective, the motives of Parliamentarians are irrelevant. They are also inconclusive, because statements by individual Parliamentarians in the course of debates are not evidence even of the subjective thoughts of the whole body. For both of these reasons, in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, the House of Lords deprecated the use of Parliamentary debates to demonstrate the inadequacy of Parliament’s reasons when legislation was alleged to be disproportionate and incompatible with the Human Rights Convention: see para 67 (Lord Nicholls of Birkenhead). “Different members”, as he pointed out, “may well have different reasons, not expressed in debates, for approving particular statutory provisions. They may have different perceptions of the desirability or likely effect of the legislation”.

34. The Board concludes that the Amending Act did not violate the principle of the separation of powers. The loss of a limitation defence which had existed for only two weeks was attributable to a legitimate change in the law, and not to a legislative intrusion upon the judicial function.

Due process and the rule of law

35. So far as the allegation of want of due process depends on the argument that it violates the principle of the separation of powers, it fails for the same reasons. But the appellants also say that a conviction in the current criminal proceedings would imperil their liberty and property, and that the due process clause of the Constitution means that an accrued right not to be tried and to a discharge and a verdict of not guilty cannot be removed by legislation. It can be removed only by judicial proceedings. The Board readily accepts that there may be vested rights relating to the conduct of criminal proceedings which could not be withdrawn by legislation consistently with section 4(a). As applied to the Amending Act, however, the argument fails, because it is not in reality the distinct point which it professes to be. The right to be acquitted and discharged without trial and irrespective of innocence or guilt is not as such a right protected by section 4(a) or any other provision of the Constitution. The loss of that right did not deprive the appellants of their liberty or property. It merely exposed them to a criminal trial in which they might or might not be found to have committed serious criminal offences. The fairness of that trial continues to be protected by the Constitution. If at the end of the process the appellants are convicted and sentenced, any adverse effect on their liberty and property will arise from a judicial proceeding. It will have occurred by due process of law.

Page 16

Legitimate expectation

36. The argument based on legitimate expectation adds nothing to the appellants’ other arguments. The Constitution does not protect legitimate expectations as such, and there must be some doubt whether, and if so when, breach of a legitimate expectation can ever, in itself, be the basis of a constitutional challenge to the validity of an otherwise regular law. But it is unnecessary to decide that question, because any relevant expectation in this case could not be legitimate in any legally relevant sense. The right to a defence of limitation was wholly statutory. Any expectation based on statute is by its nature defeasible. What Parliament gives, Parliament may take away provided that it does so consistently with the Constitution.

37. It follows that the Amending Act is a valid enactment.

Section 13

38. Section 13 of the Constitution provides:

“13(1) An act to which this section applies may expressly declare that it shall have effect even though inconsistent with sections 4 and 5 and, if any such Act does so declare, it shall have effect accordingly unless the Act is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.”

The section applies to any Act passed, as the Amending Act was, by a majority of three fifths of both houses.

39. In this particular case, the reasons which have led the Board to conclude that the Act was constitutional necessarily mean that it was justifiable in a society with a proper respect for the rights and freedoms of the individual. If the Board had concluded that the withdrawal of the appellants’ rights under section 34 otherwise than by judicial decision was a violation of article 4(a), the Amending Act would have been justifiable under section 13, because a right to be acquitted and discharged without trial irrespective of innocence or guilt is manifestly not a normal and certainly not a necessary characteristic of a “society that has a proper respect for the rights and freedoms of the individual”. If the Board had concluded that the Amending Act was ad hominem legislation, specifically targeted against the defendants in the Piarco cases, it would inevitably have followed that the resultant violation of article 4(a) of the Constitution was not “justifiable in a society that has a proper respect for the rights and freedoms of the individual”. As it is, neither of these questions arises.

Page 17

Abuse of process

40. As the Board has pointed out, this is the one argument advanced by the appellants which does not depend on the Amending Act being unconstitutional and void. The argument is that the DPP was in breach of the duties of impartiality and objectivity attaching to his functions as a prosecutor (i) by seeking an adjournment of the committal proceedings on 7 September 2012 without disclosing that he proposed to use the time to promote a repeal of section 34, and thereby unintentionally misleading the magistrate; and (ii) by then actively persuading the Attorney General to introduce a bill retrospectively changing the law. A prosecutor, it has been said, is not a partisan but a “minister of justice”: R v Puddick (1865) 4 F & F 497, 499 (Crompton J). The DPP’s alleged breach of that principle is said to make it abusive for him to proceed with the Piarco prosecutions, at any rate against these appellants.

41. The argument based on the adjournment of the committal proceedings can be shortly disposed of on the facts. It would be an abuse of process for a court to adjourn proceedings so as to enable the law to be changed adversely to one party, and improper for a party to invite a court to do so for that reason. But that is not what happened. In the first place, the DPP gave evidence by affidavit that he had applied for the adjournment on the ground that he needed time to consider the implications of section 34. He was not cross-examined on this statement, and both courts below have accepted it as true. There is no evidence that he had already resolved to promote the repeal of the section. So far as the record shows, he did not raise the possibility of repeal with the Attorney General until three days afterwards. Secondly there is no reason to believe that the adjournment of the magistrate’s proceedings had any impact on the appellants’ applications to be discharged under section 34(3). The magistrate was hearing evidence in the committal proceedings and not the applications under section 34(3). These had been brought in the High Court as required by the section, and their progress there was unaffected by the adjournment of the taking of evidence before the magistrate.

42. The argument based on the DPP’s active promotion of the repeal has greater substance, but in the Board’s view it also fails. Dean-Armorer J described the DPP’s conduct as “unusual or even officious”. In the Court of Appeal Jamadar JA thought the press release “unjustified” and clearly had reservations about the DPP’s conduct generally. But neither the judge nor the Court of Appeal considered that he had exceeded the proper limits of his functions. The DPP’s prosecuting functions are conferred on him by section 90 of the Constitution which is subject to section 76(2). The latter section provides that the Attorney General is to be responsible for the administration of legal affairs. The courts of Trinidad have interpreted these provisions as empowering the DPP to refer to the Attorney General matters of importance for the administration of criminal justice: see, in addition to the judgments below, Dhanraj Singh v Attorney General and Director of Public Prosecutions [2001] HCA S395. The Board for its part considers that the DPP’s conduct was fairly described as “officious” by the judge and that the press release was ill-advised. It is entirely proper for the DPP

Page 18

to consult or advise the law officers on matters relating to the operation of the criminal law, but this does not extend to campaigning for a change which will directly affect a current case which his office is prosecuting. It is, however, fair to say that he had been placed without warning or prior consultation in an embarrassing position, especially in the light of the outcome of the extradition proceedings and the stage which the proceedings had reached when section 34 was brought into force. In the unusual circumstances of this case, the Board is not prepared to disagree with the assessment of both courts sitting in Trinidad that his actions were within acceptable limits.

43. The Board is particularly reluctant to do so for an additional reason, which is that even if the appellants’ criticisms of the DPP were justified, it would not follow that the continuance of these prosecutions was an abuse of process. The power to put an end to criminal proceedings on this ground exists to protect the defendants in criminal proceedings from injustice and to safeguard the integrity of the criminal justice system itself. An injustice sufficient to call for a stay of proceedings on the grounds of abuse of process can arise either because the fair trial of the defendant is not possible, or, in limited circumstances, because there has been such gross executive misconduct that it is unfair to put the defendant on trial at all: R v Horseferry Road Magistrates Court, Ex p Bennett [1994] 1 AC 42. There is no question of the first in this case. The effect of everything that has happened is that the defendants will be tried, and there can be no suggestion that their trials will be unfair. Even on the footing that the interests of the defendants were unfairly prejudiced by the repeal of section 34, the only basis on which the second could be supported is that the prejudice was the result of the DPP’s conduct. The difficulty about this is that any supposed injustice was the result of Parliament’s decision to pass the Amending Act. It is axiomatic that the legal consequences of a valid Act of Parliament cannot properly be categorised by the courts as an injustice for this purpose. Nor can the conduct of the DPP be treated as unjust simply because it may be thought to have brought the repeal about. In Hoani te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308, an indemnity was sought against a statutory charge as damages for the defendant’s breach of duty in promoting the bill. Viscount Simon LC, delivering the advice of the Privy Council, expressed the principle as follows, at pp 322-323:

“It is not open to the court to go behind what has been enacted by the legislature, and to inquire how the enactment came to be made, whether it arose out of incorrect information or, indeed, on actual deception by someone on whom reliance was placed by it. … Before the court can accede to the appellant’s claim for an indemnity against the charge imposed by section 14 of the Act of 1935, the court will require not only to find that the respondent board owed to the native owners the duty alleged, and that it committed the breaches of that duty which are alleged, but also that the enactment of section 14 was the reasonable and natural consequence of such breaches, and, even assuming the duty and breaches to have been established, the third and last essential step

Page 19

for the appellant’s success would involve an inquiry by the court of the nature prohibited ...”

Conclusion

44. These appeals will be dismissed.

User avatar
zoom rader
TunerGod
Posts: 27299
Joined: April 22nd, 2003, 12:39 pm
Location: Grand Cayman

Re: Ish/Steve.... Update "May Go Free"

Postby zoom rader » January 25th, 2016, 2:48 pm

Jah bless the privy council.

If this was the kangaroo Caribbean courts justice would have never been served once the PNM Starts interfering

Redman
TriniTuner 24-7
Posts: 10430
Joined: August 19th, 2004, 2:48 pm

Re: Ish/Steve.... Update "May Go Free"

Postby Redman » January 25th, 2016, 4:37 pm

you mean interfering like pushing through legislation to benefit their financiers?

You right...Jah bless the Privy Council

pugboy
TunerGod
Posts: 25284
Joined: September 6th, 2003, 6:18 pm

Re: Ish/Steve.... Update "May Go Free"

Postby pugboy » January 25th, 2016, 4:38 pm

yeah, passing legislation where the main point was to highlight long running cases
but at the same time conveniently forgetting the longest running and most expensive case
in the history of the country

User avatar
BRZ
Riding on 16's
Posts: 1295
Joined: August 16th, 2012, 8:21 am

Re: Ish/Steve.... Update "May Go Free"

Postby BRZ » January 26th, 2016, 9:17 am

Our leaders really don't give a crap about JUSTICE, imagine a NAtional project and these sons of b1tches STOLE and swindled Millions of OUR tax payers money and they have not Been Sentenced to LIFE as yet..
what a joke. and KAMS has the audacity to say her party feels as if an injustice has been done to them now with this decision? WTF- party financiers can really get away with anything yes.

EmilioA
Riding on 16's
Posts: 1158
Joined: August 25th, 2013, 8:54 pm

Re: Ish/Steve.... Update "May Go Free"

Postby EmilioA » January 26th, 2016, 9:29 am

Kamla and crew in lala land saying this vindicated thier position. Ent them is the one that pass the law the first place ?


They moving into Sarah Palin territory with thier incoherence.

Advertisement

Return to “Ole talk and more Ole talk”

Who is online

Users browsing this forum: alfa, foreignused, Habit7, st7 and 176 guests