The Privy Council has been asked to respect the decision of local judges to strike down a novel constitutional challenge over the repeal of Section 34 of the Administration of Justice (Indictable Offences) Act.
Lead counsel for the State, Peter Knox, QC, made the call yesterday as he began his submissions in the final appeal of two businessmen and a company accused of fraud in the construction of the $1.6 billion Piarco International Airport, who would have benefitted from the short-lived legislation.
“Give weight to the opinion of the local courts because they are more familiar with their Constitution,” Knox said as he addressed the five-member panel of law lords at the United Kingdom’s Supreme Court in London.
Knox first admitted that the right to an automatic discharge afforded to the group of people and companies who applied under the legislation would have been infringed by its repeal in September 2012.
However, he stated the measure taken by Parliament to correct its oversight was proportional and reasonably justifiable in the circumstances.
“There is no legitimate expectation that Parliament would not change its mind. Now they are back on trial with all their usual rights and protections,” Knox said.
While he admitted that public outcry over the potential impact on the Piarco case triggered the repeal, Knox claimed Parliament was more concerned about the effect on future corruption investigations, which by their protracted nature may have benefited from legislation.
“It (Parliament) was not motivated by a desire to get them, it simply recognised that Section 34 was not a good law,” Knox said.
Responding to claims by the lawyer for insurance company Maritime General and its former executive Steve Ferguson, Michael Beloff, that the repeal infringed on the independence of the Judiciary by instructing it to disregard his clients’ pending applications, Knox said that determining automatic discharge applications provided by the original act was not a core function of the court.
The statement prompted the interjection of two law lords, who appeared to disagree.
“Is giving effect to a defence afforded to a person not a core function?” Lord Anthony Hughes asked.
“The fact that it is recently introduced does not preclude it from being a core function,” Lord Jonathan Sumption added.
Knox maintained his position as he said: “The legislation imposed a novel defence by removing it, the court’s power to determine guilt or innocence in these cases is restored.”
Knox also knocked the appellants’ criticism of Director of Public Prosecutions (DPP) Roger Gaspard who admitted to advocating for the repeal after public outcry over media reports on its early proclamation on August 31, 2012, and its obvious impact on the Piarco cases.
“There was nothing wrong with his actions as this was an extreme case. I understand that it may be the biggest fraud case in the Caribbean. Any minister of justice would be troubled by this,” Knox said.
“Was the Minister of Justice?” Lord Hughes said in obvious reference to then Justice Minister Herbert Volney, who was removed as a Cabinet minister over his alleged role in the early proclamation of the legislation. His sarcastic comment was followed by muffled laughter from several of his colleagues.
Knox is expected to complete his submissions this morning and will be followed by attorney Ian Benjamin who is representing Gaspard, who was added to the case as an interested party. Beloff and attorney for businessman Ameer Edoo, Michael Fordham, QC, will be allowed to respond before the panel reserves its decision in the case.