The Attorney General v The Jamaican Bar Association (Jamaica)

An anti-money-laundering regime may regulate attorneys in specified professional activities without infringing legal professional privilege, provided that privileged material is excluded from inspection and suspicious-transaction reporting. Regulatory inspection powers do not authorise coercive entry or search without clear statutory authority, consent, a warrant or court order. Any interference with broader attorney-client confidentiality must satisfy the constitutional requirement that it be demonstrably justified. The court applies a proportionality analysis: important objective, rational connection, minimal impairment within the legislature’s reasonable range of choice, and fair balance. The importance of combating money laundering, the regime’s limited scope, its safeguards and the use of criminal sanctions justified the interference with confidentiality.

The Jamaican Bar Association challenged aspects of Jamaica’s anti-money-laundering regime as unconstitutional in its application to attorneys-at-law. The challenge concerned attorneys engaged in six specified activities, including property transactions, management of assets and accounts, company formation, trusts and business sales.

The Full Court of the Supreme Court of Judicature held that the regime did not infringe the Charter. The Court of Appeal reached the opposite conclusion and quashed the challenged provisions. The Attorney General and the General Legal Council appealed to the Privy Council. The central issues were whether the regime infringed privacy, legal professional privilege, liberty or protection from search of property, and, if privacy was infringed, whether that limitation was demonstrably justified.

Appeals allowed. The Board advised that the order of the Full Court be restored.

1. Constitutional method. The Charter and the allegedly offending legislation must be interpreted, potentially iteratively, to identify any incompatibility. The claimant bears the burden of proving derogation from a guaranteed right; the State bears the burden of proving demonstrable justification. The R v Oakes [1986] 1 SCR 103 analysis applies. Standards of proof concerning disputed facts do not govern statutory interpretation or the evaluation of justification.
2. Legal professional privilege. Attorney-client confidentiality is wider and more qualified than legal professional privilege (LPP). Properly claimed LPP is substantially absolute and is not subject to a case-by-case balancing exercise. Applying the relevant legal context approach in Balabel v Air India [1988] Ch 317, the six regulated activities were likely to generate privileged material.
3. Regulatory inspection. The General Legal Council’s powers under Proceeds of Crime Act section 91A were regulatory, not investigatory. They did not authorise the Council to act as the Financial Investigations Division’s investigator. Section 91A(3) meant that an attorney was not required even to disclose privileged material. Notice, the attorney’s gatekeeping role and the general law requiring return of material disclosed by obvious mistake provided sufficient protection. The inspection regime therefore did not significantly derogate from LPP.
4. Suspicious-transaction reporting. Sections 94 and 97 excluded information received in privileged circumstances from the reporting and tipping-off offences, subject to the iniquity exception. An attorney could obtain specialist legal advice without incurring tipping-off liability. The possibility of error did not itself establish a derogation from LPP, and the reasonable-excuse defence could address delay in obtaining advice.
5. Liberty and search. No independent infringement of liberty was established. Section 91A did not confer coercive powers of entry, search or seizure. Inspection and copying depended on cooperation and consent. The warrant and disclosure-order provisions in sections 115 and 105 demonstrated that coercive powers required judicial authorisation.
6. Privacy and justification. The regime did interfere with non-privileged attorney-client confidentiality. Its objective of combating money laundering was of the first importance. The six-activity limitation was rational and non-arbitrary. Criminal sanctions were within the legislature’s reasonable range of options. Considering the safeguards, the role of the General Legal Council and nominated officers, and the protected status of LPP, the regime struck a fair balance and was proportionate.

1. Privy Council: Appeals allowed and the order of the Full Court restored. No citation for the lower decisions was stated.
2. Court of Appeal of Jamaica: Allowed the constitutional challenge and quashed the challenged parts of the regime.
3. Full Court of the Supreme Court of Judicature of Jamaica: Held unanimously that the challenged provisions did not violate the Charter.