The political corruption trial of the former Premier and Government Ministers of the Turks and Caicos Islands (TCI – a British Overseas Territory) will reach its first anniversary this December. In all likelihood it will reach another before there is any conclusion. This article seeks to provide an introduction to the case and considers one of the more recent legal challenges in respect of legal professional privilege (LPP) in the atypical circumstances of legal advice given by an Attorney General to Government Ministers subsequently charged with criminal offences.
The defendants face allegations of conspiracy to accept bribes in public office, defrauding the Government and money laundering spanning 2003 -2009. The allegations are that during that period Ministers of the Government were the beneficiaries of payments from commercial developers totalling many millions of dollars made directly to them or the political party they represented.
The background to the prosecution lies in a Constitutional crisis experienced in the Islands in 2008-2009. Despite fast growing land development and tourism, and associated rapid increases in government revenues, the finances of several departments of state were reported by the Chief Auditor to be in serious deficit and not to be properly monitored or controlled.
These and other concerns about the administration of the Islands prompted the appointment by the Governor of a Commission of Inquiry into possible corruption or other serious dishonesty in relation to past and present elected members of the Legislature in recent years. The commissioner was Sir Robin Auld, a retired judge of the Court of Appeal of England and Wales. His report recommended (inter alia) the partial suspension of the Constitution, the creation of a Special Prosecution Team to investigate what appeared to him to be evidence of corruption and dishonesty, and the suspension of the absolute right to trial.
In 2012 Mr Justice Harrison (formally President of the Court of Appeal – Jamaica) was appointed to try the case. The defence raised vigorous challenges to his decision to try the case without a jury and to his independence. These failed before a 7 Judge panel in the Privy Council (see Misick and Others v The Queen  1 W.L.R. 3215 – NB the standard of proof ruling which is capable of universal application).
One of the key witnesses in the case is the Attorney General of the TCI (who is currently well into the second week of her evidence). She was Senior Commercial Crown Counsel at the time of the Misick administration and advised the Government in respect of the various development agreements between the Government and commercial developers.
Shortly before the start of her evidence, the defence submitted that since the relationship between the defendant Ministers and the AG’s Chambers (AGC) was that of client/attorney in the context of giving advice, her evidence and exhibits (e-mails, memos etc.) concerning communications for this purpose was LPP and therefore inadmissible unless and until the individual defendant Ministers chose to waive the privilege.
To determine whether the advice given by the AGC to the Ministers is privileged and subject to a claim of LPP and therefore, not admissible in evidence, the court would need to determine the following:
- Was a lawyer/client relationship established between the AGC and a client?
- If it was who was the client?
- Is the material privileged (i.e. was communication made within a relevant legal context and does the ‘advice’ relate to the rights, liabilities obligations or remedies of the client under either private or public law)?
- If 1 to 3 are satisfied has the privilege been waived?
- Has the privilege, if it exists, been lost because all the material is in the possession of the Crown, having been handed over during the investigation with the consent of the “Government”, given the terms of appointment of the Special Prosecutor?
- In any event given that the victim of the allegations in Count 1 and 2 of the Indictment is inter alia the Government does the crime/fraud exception apply?
For the purposes of the argument the Crown conceded that the communications in question related to transactional proposals and prima facie might attract privilege. Nor did the Crown seek to persuade the Court that the AGC was NOT giving advice in relation to transactions, in circumstances that did not attract LPP (satisfying a. above).
Since the AG’s witness statement and documentary exhibits contained material that prima facie could attract privilege the next and important question was ‘who was the client?’ Was it the individual minister receiving the advice, as the defence claimed, or was it the Government? If the latter, then waiver of LPP lay not with the defendant Ministers but with the current Government. Since the Crown was bringing the prosecution on behalf of the TCI Government then it could expressly or impliedly waive privilege in respect of communications between the AGC and the defendants when they were the Government.
Not surprisingly the Crown submitted that the Government is the ‘client’ of the AG, pointing out that were it the individual Ministers then day to day business of government would be brought to a standstill as requests for waiver would be required every time information was shared and/or when Ministers moved between departments.
Once it is established (and for the purposes of the submission it was not challenged) that the AGC “advises” Government, then it is not difficult to recognise that in principle an Attorney/ Client relationship was established, but between the AG and Government. That relationship, in relation to legal advice tendered, creates a prima facie claim for LPP (b. and c. above).
Once established as such, it was necessary for the Court to consider whether any of the exceptions applied. For the purposes of the article it is not necessary to rehearse the various exceptions save to say that it was submitted on behalf of the Crown that the Special Prosecutor’s Terms of Reference which provided (inter alia) that:
‘In particular the Special Prosecutor … shall have full responsibility with respect to the following:
(a) Initiating any investigations, or further investigations, which he or she deems necessary
(c) Reviewing all documentary evidence available from any source and to which he or she shall have full access.’
were wide ranging and provided if not ‘express’ then ‘certainly’ implied waiver by the Government.
Mr Justice Harrison accepted these submissions and provided the following reasoning:
‘The government is client of AG. Only government therefore may waive LPP. Waiver may therefore be express or implied. There was express waiver of LPP by government. The Governor appointed the Special Prosecutor after Auld report with recommendations including and I quote ‘appointment of Special Prosecutor…’ the Terms of Reference gave the Special Prosecutor full responsibility including inter alia all documentary exhibits available from any source and to which he or she will have full access
The Governor after suspension of constitution, was the Government. His directive to retrieve all documentary evidence was not given in isolation, but was an express waiver of the LPP existing between AG and Government. Both were aware of the interaction and advice between Government and AG. The consequential giving of statement by AG and officers and handing over of files and development agreements and statements given by Governor and the Terms of Reference are all relative to existence of express waiver. In any event the same set of circumstances can also be construed as the Government’s implied waiver. The client Government had effectively waived it. Furthermore once privileged materials ends up in hands of opposite party it is admissible and may be utilised.’
Politicians who embark on conduct in office, which may later become the subject of scrutiny should take particular care when either acting on or ignoring advice given to them by law officers; once out of office, the decision to disclose will no longer be theirs.
Quinn Hawkins is currently first junior (of three) for the Crown in R v Misick and Others being led by Andrew Mitchell QC in the TCI.