The Queen ex parte Mario Hoffmann v The Commissioner of Inquiry and the Governor of Turks & Caicos (Turks and Caicos Islands)

In a public inquiry, a requirement to make a preliminary or provisional report does not prevent the commissioner from evaluating evidence, making findings of fact or expressing views on its implications. Such findings have no legal effect and remain open to review in later proceedings. Fairness is context-sensitive: the Salmon principles are not rigid rules. The statutory framework, the person’s role, the urgency and practical demands of the inquiry determine whether written representations, oral evidence, legal representation or other safeguards are required. A procedural omission will not necessarily invalidate adverse findings where a reasonable later opportunity to respond was provided.

A public inquiry into alleged corruption among elected members of the Turks and Caicos House of Assembly made adverse findings about a developer involved in the Salt Cay development. The developer sought judicial review, arguing that the findings exceeded the Commission’s terms of reference and that the procedure was unfair. The Chief Justice rejected the challenge on 16 June 2009, and the Court of Appeal dismissed the appeal on 17 March 2010. The Privy Council considered whether a preliminary inquiry could make evaluative findings about third parties and whether fairness required the developer to receive the same procedural safeguards as primary subjects of the inquiry.

Appeal dismissed. Lord Phillips delivered the judgment of the Board.

1. Scope of the inquiry. The terms of reference, read with section 2(1) of the TCI Commissions of Inquiry Ordinance 1986, permitted investigation of third parties and their transactions where that was necessary to understand and evaluate possible corruption involving elected members. They did not authorise investigation of wholly unrelated third-party matters.
2. Preliminary findings. The description of the report as preliminary or provisional did not restrict the Commissioner to reporting bare information or possibilities. He was entitled, and required, to evaluate the material, make findings of fact and express opinions on its implications. Such findings had no legal effect and remained open to review in any later proceedings.
3. Representation and fairness. Section 7(1) of the Ordinance entitled a person whose conduct was the subject of the inquiry, or who was implicated or concerned in its subject matter, to representation. Section 7(2) required the Commission to determine whether a person fell within that class. Not every developer involved in the transactions thereby became a participant, but the prominence and detail of the developer’s role in the Salt Cay matters made him at least a person implicated or concerned.
4. Context-sensitive procedure. The Board endorsed the general fairness principle in Mahon v Air New Zealand [1984] AC 803 and the flexible approach in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531. The Salmon principles could not be applied inflexibly. Fairness depended on the statutory scheme, the inquisitorial and urgent nature of the inquiry, practical constraints, the person’s status and interests, and the nature of the material relied upon. It could sometimes require oral evidence, although there was no universal entitlement to an oral hearing.
5. Application. Given the developer’s reputation and substantial business interests, fairness required a reasonable opportunity to address his involvement, including an opportunity to give oral evidence. It would have been fairer to notify him before the first oral hearings, but his absence at that stage was not decisive. His later opportunity to give oral evidence was reasonable; he effectively declined it without adequate explanation. The Commissioner then considered extensive written evidence, legal submissions and responses to a Salmon letter. Overall, the procedure was fair.
6. Order. The appeal was dismissed. The appellant was ordered to pay the respondent’s costs, subject to written submissions within 28 days.

1. Privy Council: Appeal dismissed. The Board upheld the conclusion that the terms of reference permitted the findings and that the procedure was fair.
2. Court of Appeal of the Turks and Caicos Islands: Appeal dismissed on 17 March 2010.
3. Chief Justice: Judicial review application rejected on 16 June 2009.