Appeal Court upholds Bar Association POCA challenge

Appeal Court upholds Bar Association POCA challenge

Saturday, August 01, 2020

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The Appeal Court yesterday upheld the Jamaican Bar Association's challenge of amendments to the Proceeds of Crime Act (POCA) that would essentially force lawyers to report instances of financial crimes uncovered when dealing with their clients.

The Bar Association had claimed that the legislation would, among other things, breach lawyer-client privilege which holds that matters discussed do not have to be disclosed to a third party.

Yesterday was the second of a two-part ruling to a challenge brought by the State against a 2014 injunction granted by then judge Justice Bryan Sykes which gave the Jamaican Bar Association a temporary reprieve from certain legislative requirements under the POCA.

In the first part of the ruling earlier this month, the court threw out the State's challenge and pointed out that “an important concession by the Crown” at the end of its submissions was that “the court does have the power to grant an injunction against the Crown” even though it went on to contend that there was power to do so only at the Bill stage and before a Bill was enacted into law.

Appeal Court judge Justice Frank Williams, in handing down the decision, said he could “discern no fault with or error in the procedure adopted by Justice Sykes in arriving at his 2014 conclusion”.

Yesterday, the court ruled that the appeal is allowed in part, noting that the Proceeds of Crime (Designated Non-Financial Institution) (Attorneys-at-Law) Order, 2013 designating attorneys as non-financial institutions for the purposes of the Proceeds of Crime Act, 2007 is not unconstitutional and is, therefore, valid and lawful.

The court said provisions of the regime are likely to contravene the rights guaranteed to attorneys by the Charter of Fundamental Rights and Freedoms (Amendment) Act, 2011.

Those rights include:

• Protection from search of their property in contravention of section 13(3)(j)(i);

• Respect for and protection of private life in contravention of section 13(3)(j)(ii);

• Protection of privacy of other property and of communication in contravention of section 13(3)(j)(iii); and

• The right to liberty and not to be deprived of liberty in contravention of section 13(3)(a).

However, the court ruled as unconstitutional, null and void and of no legal effect the following instruments as they apply to attorneys-at-law:

• The Proceeds of Crime Act, 2007 (as amended by the Proceeds of Crime (Amendment) Act, 2013 in so far as it requires attorneys to report suspicious transactions directly to the designated authority, namely, the chief technical director of the Financial Investigations Division;

• The provisions of the Proceeds of Crime (Money Laundering Prevention) Regulations, 2007 and the amendments to it that touch and concern the enforcement of the provisions of the regime as set out at paragraph V(i) of the order and any other penalty provisions;

• The Legal Profession (Canons of Professional Ethics)(Amendment) Rules, 2014 that amends the Legal Profession (Canons of Professional Ethics) Rules, 1978 to permit attorneys to reveal client confidences or secrets in compliance with the POCA and the attendant regulations.

The court also ruled that the General Legal Council shall not make any disclosure of any information contained in the annual declaration of activities by attorney filed in keeping with section 5(3C) of the Legal Profession Act.

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