Speech by Helen Garlick to the All Party Parliamentary Group on Anti-Corruption

ALL PARTY PARLIAMENTARY GROUP ON CORRUPTION 28TH NOVEMBER 2012  I was appointed as Special Prosecutor to the Turks and Caicos Islands in August 2009, as a result of findings made by another all party group, The Foreign Affairs Select Committee in 2008 . A Commission of Inquiry, chaired by Sir Robin Auld had been established to examine and report on allegations of endemic corruption among government ministers of the ruling PNP party. Sir Robin used the COI’s statutory powers to call for documents and to examine witnesses, including a number of the implicated ministers and duly reported with a raft of recommendations. As a direct result, parts of the Constitution and in particular government by the elected Assembly was suspended, to allow for direct rule from Westminster via the governor. Sir Robin also recommended that a specialist, independent team should be set up to investigate and if it found sufficient evidence, to prosecute.  The Special Investigation and Prosecution Team (SIPT) became fully operational in March 2010. Within 18 months we had charged 13 people with offences of bribery, money laundering and conspiracy to defraud.

The accused include 4 former Cabinet Ministers and 3 local attorneys. Also 2 foreign property developers accused of giving bribes. (one of these suffers from ill health and accordingly the proceedings against him have had to be discontinued. ) Papers have been served on the former Premier Michael Misick, who fled the country soon after we arrived and application will be made to try him in his absence. There is an international warrant of arrest for a third foreign property developer. The investigation is largely

complete but there remains the possibility of further charges against a handful of other suspects.  At present 12 accused are therefore awaiting trial , no date has yet been fixed, for reasons that I shall explain.  Although I can certainly not claim to be an expert, the research that I have needed to do into the position in other ODT’s , leads me to believe that the TCI is by no means untypical.

So far as it criminal law and infrastructure are concerned , in the ten minutes that I have, this is a summary of my experience.

Modernisation and reform of Criminal Law and procedure has been largely ignored for decades.

1. There is no statutory offence of corruption. The only offence available is the common law offence of bribery. This has not been a major handicap to this particular investigation, although it does mean that we proceed to trial using as our principal charge an offence that has been largely unused in recent times and therefore with a body of authority as to its definition and ambit that is scant. I mention it because it is indicative of the inaction that has characterised the ODT’s attitude to criminal law reform.

2. Police powers are also a mix of the common law and of local Ordinances that are badly in need of revision. For example, the local Law governing search and seizure was impossible to read in a way that made even grammatical sense. It had to

be amended as an emergency measure, pending a more thorough revision.

3. In the UK, Police and Criminal Evidence Act 1984 and the CPIA 2008 brought in much needed reform on the use of police powers and the rules governing the disclosure of unused material in criminal trials. I believe that comprehensive reforming Acts such as these, that also require complicated and expensive procedural and administrative changes should not simply be transposed whole sale to very small jurisdictions.

However it does not seem to me that any effort has been made to encourage ODTs to legislate in compliance with these and other criminal law and evidence reforms that have been regarded as vital in the UK, in order to deter crime, to respond to international initiatives and just as important, to protect the rights of suspects and accused.

4. In fact ,the only modern legislation in this field in TCI is their Proceeds of Crime Ordinance 2007, drafted in response to the extraordinary international pressure in recent times to combat money laundering and terrorist financing. The TCI’s Ordinance attempted a wholesale transposition of the essential features of the UK POCA . The Ordinance as originally drafted was found to be full of errors and over 90 corrections and amendments to it had to be made. No consolidated version has been produced. But because TCI had not adopted any of the reforms brought about by the PACE 1984, it also needed to ensure that the sweeping new powers of financial investigation were available to investigate all serious crimes, and were not confined to money

laundering. In other words TCI police needed the the same powers available to a UK officer to investigate ,let us say, the financial motive for a murder. The solution was a short further amending Ordinance which has now been done.

But the POCO is an example of the problems that in my opinion have beset law reform in the ODTs, namely that; a) Insufficient effort has been made to encouraging them to keep pace with key reforms in the UK. b) Instead there is piecemeal modernization, new legislation is drafted without any proper attempt to review how it fits with the existing body of law.

New Ordinances tend to be simply bolted on top of an increasingly obsolete and in some instances positively unfit body of law. c) Poor quality drafting. This is not to disparage local Crown Counsel, but major drafting exercises require highly skilled and experienced Parliamentary draftsmen.

5. TCI is not party to any of the MLA Conventions agreed by the UK, and although the UK’s bi lateral Extradition Treaties provide that they may be extended to the ODT’s by an exchange of Notes, I believe that across the ODT’s there are very few examples. With one or two exceptions, the US being the most notable, it has failed to forge any extradition or MLA agreements of its own with other jurisdictions. This means that we have had to rely on the voluntary provision of assistance , based on recognition of the principle of comity

and a limited ability to offer reciprocity for much of the international help that we have needed and so far as extradition is concerned on Interpol Red Notices and the hope that the suspects may be arrested in one of the few jurisdictions with which the TCI has a Treaty, which in practice means the USA. Because the ODT’s are not party to the streamlined extradition procedures that exist between the UK and many other countries by virtue of the European Convention and the Extradition Act, one result is that TCI may extradite a fugitive offender from the USA far more quickly and with considerably less expense and difficulty that it can from Canada or indeed from the UK. 6. TCI has trial by jury, which is a panel consisting of only 7. Only Belongers have the franchise and with it the right to sit on juries, there are about 6,000 adult Belongers. Trial by jury is not recognised as a human right under the European or UN Conventions and it is no part of the justice system in many countries which are full members of both. In the UK, we have removed the right in cases of jury tampering. Post the COI under the interim administration a Trials Without Juries Ordinance was passed, that allows a judge to be the arbiter of whether a fair trial can take place before a jury. In countries of very small populations, perhaps with very strong and ingrained cultural and political affiliations provision must be made for either the defence or the prosecution to argue that a jury trial will not result in a just determination, based solely on the admissible evidence produced in court.

7. In many ODT’s there has to be a pre trial hearing before the Magistrates Court, where if the defence insist, all the evidence that the prosecution relies on to prove its prima facie case must be called.

This is the case throughout the region and there are Caribbean countries where cases commenced three or four years ago are still stalled at the preliminary stage. In cases of high level political corruption there is every incentive to drag the proceedings out in this way, hoping that the political landscape will be changed and that the prosecution will run out of steam and lose political support. During the interim administration an ordinance was passed that replicates the position in the UK, so that serious cases are fast tracked through the Magistrates court and are sent directly to the Supreme Court, where a Judge can hear applications to dismiss based solely on the papers. This is what has happened in the our case.

8. Legal Aid. To mount a large document driven prosecution, adequate funds must be made available and a rationale scheme has to be put in place to ensure that those accused who can not pay for their defence have a fair trial. It is not unusual for defendants accused of acquiring large amounts of cash and criminal assets to be unable to fund their own defence by the time they are tried. The TCI had no scheme that was fit for this trial, the first in its history that had ever made such demands on the public purse. A bespoke scheme has had to be devised solely for this litigation. As with substantive law reform, the challenge is not to saddle small jurisdictions with the complexities and administrative burden of the UK Legal Aid scheme but to put in place a scheme

that is seen to be administered fairly and reasonably, that is as consistent as possible with other ODTs and where the rates paid bears comparison with regional rates paid privately for legal advice and representation.

Finally a few words about the legal profession, which in the ODT’s has a statutory duty under local Legal Profession Ordinances both to promote the proper administration of justice and to protect the public by regulating itself in order to ensure proper standards of competence and integrity. It is my experience that local Bar Councils in small territories tend to act more like a trade union, concerned principally to protect their members from competition with practitioners from outside the jurisdiction and appear to accept little if any responsibility for enforcing standards of integrity and competence or for taking a pro active role in law reform. Many ODT practitioners are members of the UK Bar or are UK qualified solicitors, accepting the advantages that brings, including the reassurance it provides to clients. But for example ,they are not required to take part in Continuous Practice Development, which is insisted on in the UK, as one of the key ways of ensuring that legal skills and ethical standards are maintained and in several other respects, including the pupillage rules, it seems to me that any examination of the fitness of the ODTs to comply with internationally required standards so far as corruption and money laundering, has to involve a rigorous look at the manner in which the legal profession is regulated.

As you will know, after 3 years, free elections took place a few weeks ago and the PNP has been re elected to government, albeit under a revised Constitution.

I understand that one has to appreciate the Constitutional and Political tensions, that the UK Govt wants to encourage greater autonomy and steer the ODT s to a point where they are ready to embrace full independence but I believe that there has been neglect of essential law reform and capacity building for decades and that this has to be rectified as a mater of urgency, using whatever are judged to be the appropriate degrees of compulsion and encouragement . The TCI is not the only ODT which has become a magnet for inward investment, because of its beaches and attractive tax regime. If the ODTs are not fully equipped to combat corruption and money laundering, they risk becoming hijacked by organised crime, even without the encouragement of corrupt politicians.