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Privy Council rules: Section 34 repeal legal

Published: 
Tuesday, January 26, 2016

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

Delivering their judgment at the United Kingdom’s Supreme Court in London yesterday morning, five British Law Lords effectively dashed the hopes of 42 people and companies who sought to invoke the legislation before it was eventually repealed two weeks after being proclaimed on August 31, 2012. 

The legislation’s controversial Section 34 clause gave people, whose trials for specific offences had not started ten years after the crime was allegedly committed, the right to apply to have their case dismissed. Most of the applicants stand accused of fraud and corruption charges arising out of the construction of the $1.6 billion Piarco International Airport. 

The judgment now clears the way for their cases, which were put on hold pending the outcome of the final appeal of their constitutional motion lawsuit, to resume. 

Businessmen Ameer Edoo and Steve Ferguson and insurance company Maritime General, whose lawsuits were used as test cases to determine the fate of the other applicants, will now have to return to court in the next couple of months for the “Piarco 11” preliminary inquiry. The inquiry was at an advanced stage, with one more prosecution witness left to testify, before it was stayed to allow the trio to launch their bid to have the repeal reversed. 

In their lawsuit, the trio contended that Parliament infringed upon judicial independence since, by repealing the law, it removed the court’s power to determine cases already filed before it. Like High Court Judge Mira Dean-Armourer and the Court of Appeal before it, the country’s final appeal court strongly disagreed. 

“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,” Lord Jonathan Sumption, who wrote the 19-page judgment, said. 

Sumption dismissed claims that the repeal was illegal as it specifically targeted them because of the controversial crimes they are accused of. 

“Sometimes the facts of a particular case simply exemplify the need for a general law,” Sumption said, as he acknowledged the fact the public furore over the impact of the early proclamation of the clause may have spurred parliament’s decision to repeal. 

“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,” he continued. 

Sumption also rejected claims from the applicants that they had a legitimate expectation that their applications for the automatic discharge from their criminal proceedings would be allowed when they filed them before the repeal. 

While his judgment absolved Parliament of wrongdoing in rectifying what it had deemed as an “oversight”, Sumption gave mixed views on the role of Director of Public Prosecutions (DPP) Roger Gaspard, SC, in procuring the repeal by informing then Attorney General Anand Ramlogan of its potential impact on the Piarco cases. 

The trio’s lawyers had claimed that Gaspard overstepped his constitutional remit by advocating against the clause through his communications with Ramlogan and through a subsequent press release he issued. 

“It is entirely proper for the DPP 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 the proceedings had reached when Section 34 was brought into force,” Sumption said. 

While Sumption criticised Gaspard’s involvement, he suggested that it was not enough to render their continued prosecution as unconstitutional.