A weekly digest of legal news under the following headings: –
Before the Courts
Debated Bills / Legislation
Law and Society
Beyond Our Shores
Law and Technology
The Privy Council ruled in favour of municipal police officers
who had been waging a 15 year legal battle against the State of
Trinidad and Tobago. The court ordered the State to pay them
equally as regular police officers and stated that the failure to
pay them equally amounted to a denial of the rule of law and
brought the system of justice itself into disrepute.
Here is the decision.
The Government of Jamaica owned Assets Recovery Agency has scored a major legal victory which has paved the way for financial institutions to give it information about people being investigated for money laundering before they are convicted.
High Court Judge Marlene Carter ruled on Tuesday afternoon that the motion of no confidence case in St Kitts and Nevis will go ahead, saying that the application to dismiss the case was denied.
Before The Courts
The lead attorney representing the opposition, Christopher Hamel Smith SC, told Justice Marlene Carter that they intend to add the Commission because it has been announcing that elections will be held under changed boundaries, even though the matter remains in court and has not yet been resolved.
For an overview of both sides of the argument click here.
University of the Technology (UTech) first-year law student Duke St John-Paul Foote is again engaged in a legal battle with the institution, which he contends is preventing him from doing law courses.
THE Fair Trading Commission (FTC) is now seeking to challenge, at the United Kingdom-based Privy Council, last year’s decision by the Court of Appeal on the Digicel/Claro merger.
The FTC on January 9 applied to the appellate court for conditional leave to appeal its judgement that was delivered on December 19, 2014. In that judgement, the appellate court upheld the FTC’s jurisdiction over telecommunications matters, rejecting Digicel’s argument to the contrary.
Click here for the Court of Appeal decision.
QUEEN’S Counsel Jacqueline Samuels-Brown signalled her intention to make a no-case submission in the Al Miller corruption trial after the prosecution closed its case in the Corporate Area Resident Magistrate’s Court.
An alleged romantic relationship between two senior homicide detectives was the main issue raised in the trial of 12 men accused of the murder of businesswoman Vindra Naipaul Coolman in Trinidad and Tobago. Defence attorney Wayne Sturge sought to prove that the two officers colluded when they
took statements from the State’s main witness in the case.
In Trinidad and Tobago, the assistant judicial support officer
who failed to forward information relating to the filing of a
defence to the attorneys of Opposition leader Dr. Keith Rowley
in the emailgate defamation lawsuit has been reassigned. This
follows the granting of judgement in default against Dr. Rowley
after he failed to file his defence before the court’s deadline.
Bain v The University of the West Indies
Among the final set of witnesses for Bain included Dr William Aiken who testified that academic staff at UWI were now on tenterhooks if their expert evidence was not viewed favorably by the university and its donors. Robert Landis, of the UWI Cave Hill campus, also testified that the statement placed on the UWI’s website concerning Bain’s termination belittled Bain. In Vice-Chancellor Harris’ testimony he indicated the university had no choice but to release a statement because of inaccurate reports in the public domain on the issue. Bain’s last witness, Shawn Wenzel, an IT consultant, testified that articles written about Bain’s termination was circulated worldwide via the internet.
Professor Peter Figueroa was UWI’s first witness. Under cross examination he testified that he cautioned Bain about giving evidence in Belize because the impression could be formed that he favoured the church groups. He also testified from an article in The Lancet indicating that the spread of HIV among men who have sex with men is more prevalent in countries that retain the buggery law.
Nigel Harris’ testimony brought out the process that led to the termination of Bain’s contract. Harris indicated that he acted as mediator between Bain and the disgruntled groups and that he never meant to make the termination public but it was already in the news. He also revealed that consultations were held with various AIDS and health experts, including the Chancellor of the UWI, over an eight-month period before coming to a decision to terminate. The actual decision, Harris said, was not influenced by donor agencies; he took the decision then informed them. Evidence also emerged that Bain promised he would resign during the controversy but went back on that promise.
UWI also called on evidence from Professor Rose-Marie Antoine, dean of the UWI Faculty of Law St Augustine Campus. She challenged the accuracy of the expert evidence presented by Bain in Belize.
In other aspects of the case, there was dispute over whether UWI owed Bain money or not.
Debated Bills / Legislation
The House of Representatives is to vote on the Bills making the Caribbean Court of Justice (CCJ) the final court of appeal for Jamaica, on April 28. After the Bills have been debated in the Lower House, there is a time period of three months before a vote can be taken.
Minister of Justice, Senator Mark Golding tabled the Dangerous Drugs (Amendment) Act, 2015 in senate yesterday, January 23. The Bill seeks to decriminalize ganja for medicinal, religious, and private/personal use.
The amendments to the act will make the possession of small quantities of ganja, amounting to two ounces or less, a non-arrestable but ticketable infraction, attracting a fine payable outside of the court, but not resulting in the possessor attaining a criminal record.
Parliament today rushed the passage of controversial amendments to the Sugar Industry Act, Chapter 325 of the Laws of Belize, paving the way for two new sugar associations: the Corozal Sugar Cane Producers Association and the Progressive Sugar Cane Producers Association, to emerge as competing lobbying groups for cañeros in northern Belize, even as the fate of the vanguard association, the Belize Sugar Cane Farmers’ Association (BSCFA), hangs
THE Jamaica Manufacturers’ Association (JMA) has raised concerns about a clause included in the Public Procurement Bill, which would allow suppliers from Caribbean Community (Caricom) states to bid for local public sector procurement contracts as “national bidders”.
The Bill defines a “national bidder” as a supplier who is a national, or a body incorporate in Jamaica or in any other member state of Caricom. But the JMA, in a submission to a Joint Select Committee of Parliament currently reviewing the Bill, says that it could be “harmful” to local suppliers.
In Jamaica the debate in the Upper House on proposed changes to the Evidence Act was suspended on Friday, 23rd January after some legislators expressed concerns that one of the amendments would place accused persons at a grave disadvantage. The amendment in issue would repeal Section 31G which relates to computer generated evidence. Repealing this subsection would shift the burden of proof currently placed on prosecutors to the accused person who would now have an evidentiary burden, attorney K.D Knight argued.
However DPP Paula Llewellyn has argued that repealing the provision would benefit prosecutors and bring criminal laws in Jamaica closer to international practices.
Debate on the Precursor Chemicals(No 2) Bill resumed in Senate on Tuesday, January 20th 2015. This legislation seeks to provide for the monitoring of and prevention of the diversion of precursor chemicals and other chemical substances which include being used in any type of illicit transaction involving narcotic drugs.
Law and Society
The Trinidad-based Caribbean Court of Justice (CCJ) is observing its 10th anniversary this year with Justice Adrian Saunders saying the “CCJ has come a long way over those 10 years”.
Reginald Amour, a Trinidadian attorney at law who has also acted as a high court judge, stated that the lack of confidence in the Caribbean Court of Justice indicates a mistrust of regional politicians that they may interfere. She made these statements at a forum themed “Advancing the case for Regionalism and Indigenous Jurisprudence” at the University of the West Indies, St Augustine, held by the faculty of law. Rose Marie Bell Antoine, Dean of the Faculty of Law there also lamented that after 10 years after the establishment of the CCJ, it was sad that a debate still rages on as to whether to adopt the CCJ as the final court of appeal in countries in the region.
The Bar Association wishes to put on record its serious concern about the Court of Appeal. The last session of the Court of Appeal was historic in its underperformance,” said the president of the Bar Association, Eamon Courtenay, S.C. “For the first time in history, there was not a single criminal appeal, as far as I can remember. That is unacceptable.” Courtenay added, “There was a record low number of civil appeals heard.”
Supreme Court judge Lennox Campbell has expressed frustration that prisoners in custody at the Supreme Court Building continue to breach the law by smoking ganja.
THE Caribbean Court of Justice (CCJ) Trust Fund has a healthy balance, the latest audited report shows.The balance of the fund as at December 31, 2012 was US$93.7 million and increased to US$100.4 million as at the end of the financial year 2013, its annual report for 2013 shows.
A link to the most recent report can be found here.
Jamaica’s chief justice, Zaila McCalla, has urged members of the judiciary not to be intimidated by criticisms, although some critics might be blaming them while the lack of funding is what is really to be blamed.
Chief Justice Zaila McCalla, in an exclusive interview withThe Sunday Gleaner, argued that Jamaicans are not aware of the rigorous schedule of judges who are being criticised for failing to deliver timely written judgments in an increasingly litigious society.
David West, director of the Police Complaints Authority stated that Trinidad and Tobago has failed at least one recommendation of the Financial Action Task Force on money laundering as it has had no convictions for the crime even though it passed several amendments to the Miscellaneous Provisions(Proceeds of Crime, Anti Terrorism, Financial Intelligence Unit of Trinidad and Tobago) Act which should have made easier to charge persons for money laundering offences.
Beyond Our Shores
Much of Magna Carta is impenetrable to modern readers, couched in medieval jargon and concerned with the detail of relations between the king and his most powerful feudal tenants. And the charter’s most significant innovation, a “security clause” in which the king was subjected to the oversight of a panel of 25 barons, proved impossible to implement.
But the document quickly gained a central place in English political life and remains a touchstone of English liberties. However, few of us have actually read it.
The London Court of Appeal has ruled in favour of Barbadian singer Rihanna in an appeal by Arcadia, a clothing store and parent company of Topshop, which used an image of Rihannaon one of its shirts without her permission. This decision marksthe first successful celebrity case of its kind. The Court ofAppeal agreed with Justice Birss that the infringement amountedto the tort of passing off.
The judgment of the Court of Appeal can be found here.
Malaysia’s top court dismissed a final bid by the Catholic church to use the word “Allah” in its newspaper, highlighting a debate on non-Muslims using the word in a climate of rising religious tensions.
School authorities may require a student or his or her parent/guardian to provide a password or other related account information in order to gain access to his/her account or profile on a social networking website if school authorities have reasonable cause to believe that a student’s account on a social networking site contains evidence that a student has violated a school disciplinary rule or procedure.
Steven Jackson, a student at the Norman Manley Law School,
responded to statements made by Parliament regarding Jamaica
moving away from the Privy Council. He views the failure thus
far by Jamaica to adopt the CCJ as the final Court of Appeal for
the nation as being quite inexplicable. He advocated for the
necessity of the CCJ which included highlighting the Shanique
RyankaRagbir, a student at the Hugh Wooding Law School raises the prevalent issue of domestic violence in Trinidad and Tobago in discussing the rights and remedies available to one who finds themselves as a victim of domestic violence.
When she takes office this week as Jamaica’s third, and first female, public defender, Arlene Harrison Henry will have the opportunity to mould the office into something akin to the institution it was meant to be after a decade and a half of uncertainty.
Thus, while the CCJ has been making waves with its controversial and landmark decisions, it faces formidable obstacles in forging that indigenous jurisprudence envisioned ten years ago. Unless the trust and faith placed on the Privy Council is transferred to the regional court, that dream remains in the distant prospect.
Andre White highlighted the urgent need for the New National
Building Act of Jamaica in light of Earthquake Awareness
Justin Felice may be gone but his legacy lives on. Deputy Commissioner Glenmore Hinds came out swinging against lawyers and, according to The Gleaner (‘Police official knocks lawyers for resisting POCA scrutiny’, December 12, 2014), referred to the Bar Association’s exercise of its constitutional right to file a lawsuit as “efforts to block more effective money-laundering legislation”.
Here is a simplified summary of the arguments for and against adopting the CCJ as Jamaica’s final court of appeal.
Law and Technology
Kellie Pantekoek addresses the very modern and practical ethical issues that attorneys at law may have or soon may face themselves with in the near future with social networks. At a panel entitled “New Millennium Legal Ethics” American attorneys discussed several modern day scenarios where ethical violations may occur and several of these scenerios involved Facebook.
Social Development Minister Delma Thomas of Grenada has
called on the Grenadian population to desist from using the
internet for illegal activities. This comes as police continue their
investigations to determine how a number of pornographic
photos, some which include school children, were posted on
various websites. Parliament has recently approved the
Electronic Crimes Act which prohibits the publication of child