Hinds and others v Director of Public Prosecutions (Jamaica)

Section 20 of Mutual Assistance (Criminal Matters) Act 1995 provides for a judicial proceeding when a judge takes evidence on oath for a foreign investigation. The judge acts in a formal judicial capacity, with the powers and safeguards ordinarily attached to that function. The proceeding is therefore subject to the common-law principle of open justice and section 16(3) of the Constitution of Jamaica. That principle may be qualified where necessary for the proper administration of justice. Section 19 requires the procedure appropriate to the type of assistance requested, rather than merely the procedure commonly used at an investigative stage. Public importance, the public role of the witnesses and the absence of demonstrated prejudice supported an open hearing. The appeal was dismissed.

The Netherlands sought mutual legal assistance under the Mutual Assistance (Criminal Matters) Act 1995 in connection with an investigation into an alleged payment to a Jamaican company. After interviews had failed to obtain the requested information, the Jamaican Central Authority authorised proceedings under section 20 for the appellants to give evidence on oath before a judge in court.

Campbell J refused an application for the evidence to be taken in chambers and later gave written reasons. The Court of Appeal of Jamaica dismissed the appeal, holding that the constitutional open-justice requirement applied, subject to a discretion to restrict it. The central issues before the Board were whether the section 20 procedure constituted proceedings of a Jamaican court, whether the common-law open-justice principle applied, whether the judge had a discretion to order a public hearing, and whether that discretion had been wrongly exercised.

The Board advised that the appeal should be dismissed.

1. Judicial character of the procedure. The section 20 procedure was a proceeding of a Jamaican court in the ordinary sense of the word. The judge or resident magistrate acted in a formal judicial capacity. The power to order attendance and the giving of evidence necessarily carried the ancillary authority required to enforce the order and to rule on privilege, fairness and the permissible scope of questioning.
2. Execution of the request. Section 19 of the Mutual Assistance (Criminal Matters) Act 1995 required execution according to the Jamaican law and procedure applicable to the type of assistance requested. It did not require the use of private procedures merely because the foreign matter remained at the investigative stage. A request for evidence to be taken by a judge in court called for the procedure applicable to judicial evidence-taking, including an open court with public and press access and the usual judicial powers and sanctions.
3. Open justice. The common-law principle applied because the judge was exercising traditional judicial functions and could make rulings affecting witnesses’ rights, privilege against self-incrimination, admissibility and procedural fairness. Public scrutiny was relevant not only to final adjudication but also to the fair and lawful conduct of judicial proceedings. The Board applied the reasoning in Attorney General v Leveller Magazine Ltd [1979] AC 440, Hogan v Hinch [2011] HCA 4 and Khuja v Times Newspapers Ltd [2017] UKSC 49.
4. Constitutional effect and discretion. Section 16(3) of the Constitution of Jamaica, expressed in the widest terms, applied to section 20 proceedings. The court nevertheless retained a discretion under section 16(4)(c), consistent with the common law, to restrict open justice where necessary for the proper administration of justice. The circumstances of a particular mutual-assistance request could require qualification of the principle.
5. Review of discretion. The appellate test was whether the first-instance judge misunderstood the law or evidence, or reached a decision so aberrant that no reasonable judge acting judicially could have reached it. That threshold was not met.
6. Application. The public importance of the investigation, its potential effect on the country’s polity, the public status of the witnesses, the public nature of the allegations and the absence of evidence that publicity would prejudice later proceedings were relevant considerations. The judge was entitled to conclude that a public hearing would promote scrutiny and clarify the nature of the inquiry. The Board also rejected the submission based on Williams v Comr of the Independent Commission of Investigations [2012] JMFC Full 1, which had been misconstrued.
7. Confidentiality. Any confidentiality in the letters of request belonged to the foreign state. It had not been asserted and was impliedly waived by the request for evidence to be taken by a judge in court.

• Privy Council. The appeal was dismissed.
• Court of Appeal of Jamaica. The appeal from Campbell J’s refusal to conduct the evidence-taking in chambers was dismissed. The court held that the constitutional and common-law open-justice principles applied, subject to a discretion to restrict them.
• Full Court of the Supreme Court of Jamaica. The appellants’ separate constitutional motion was dismissed in September 2013. An appeal from that decision was withdrawn and was outside the scope of the present appeal.
• Campbell J. The applications for a private hearing and a stay were refused. The judge later prepared written reasons for the appeal.