November 26, 2012
The Hon. Sir Anthony Colman
Commission of Enquiry into the Failure of CL Financial, the Hindu Credit Union and Related Companies
No. 24-28, Richmond Street,
Re: Your Commission of Enquiry into the Collapse of CLF, HCU, CLICO and
I refer to your letter of the 21st of November 2012 in response to mine of the 8th of November 2012. In my letter I advised you that the Police had commenced a full criminal investigation into the conduct of individuals and corporate entities involved in the collapse of CLICO and related companies. I note with extreme concern that your letter to me, was released on the 22nd of November 2012 for publication by the press through the Office of the hon. Prime Minister. That is simply a most extraordinary development given the independent mandate of your Commission, especially since at the time of its issuance to the media your Secretariat had already sent it to me on the previous day.
You advised me in your letter that you would decline an invitation to cease to conduct the enquiry in public and with full media access as that would be contrary to the public interest. For my own edification, I would be grateful if you were to advise me of the reasons why the public interest would be better served in your continuing the enquiry in this way rather that by avoiding the likelihood of a potentially credible prosecution being stayed on the ground that defendants had been prejudiced by publicity caused by your enquiry.
Nonetheless, given the tenor of your letter to me it is my duty to ensure that you are fully informed of what has been transpiring since the 10th of September 2012, in relation to the continuation of your enquiry vis-à-vis the criminal investigation.
By letter dated the 10th of September 2012 I wrote to the Hon. Attorney General informing him that there should be a full criminal investigation into the collapse of CLICO and related companies.
In that letter I provided a summary of the allegations to be investigated by the Police. By letter dated the 5th of October 2012 the Hon. Attorney advised me of his commitment to provide all necessary support for a criminal investigation.
I wrote to the Hon. Attorney again by letter dated the 19th of October 2012, expressing to him my concerns about the impact which your enquiry is likely to have on any criminal investigation. As such, I invited the Hon. Attorney to inform you of the criminal investigation and I suggested that you should be advised to refrain from doing any of the following:
(i) Make any finding that any person or entity may have committed a criminal offence.
(ii) Issue any Salmon letters to anyone.
(iii) Compel any person to give evidence who has indicated an intention to exercise his or her privilege against self-incrimination.
I consider the matter to be so serious that I requested the Hon. Attorney to advise his Excellency the President to suspend your Commission immediately or to at least vary the Terms of Reference of your Commission in the following ways:
(i) by deleting sub-paragraph 1(iii), (vii), (ix) and the word fraudulently in 1(viii); and
(ii) by deleting sub-paragraph 2(i).
I had asked the Hon. Attorney to treat urgently with the matter as your enquiry was scheduled to sit from the 22nd of October 2012. Unfortunately I did not hear from the Hon. Attorney before your enquiry resumed on the 22nd of October 2012.
As I had not heard from him I wrote to the Hon. Attorney again by letter dated the 1st of November 2012. I advised the Hon. Attorney in that letter that the criminal investigation was now active. I also repeated my concerns about the impact which the continuation of your enquiry is likely to have on the criminal investigation and I requested that he apprise you accordingly. Further, I indicated to the Hon. Attorney that if he were not to intervene by the 5th of November 2012, I would consider myself duty bound to take the matter up with you directly.
The Attorney General responded to my letter of the 19th of October 2012 by letter dated the 2nd of November 2012 declining to advise His Excellency the President to suspend your Commission. He did not refer to my letter to him of the 1st of November 2012 in which I advised that the criminal investigation was active. The Hon. Attorney also did not address the issue of the terms of reference of your Commission being varied (Emphasis mine). The Hon. Attorney’s position appeared to be that there was a greater public interest in your enquiry continuing rather than preserving the credibility and integrity of the criminal investigation and the prosecution of those who may be responsible for any criminal wrongdoing.
This is the same position which you appear to be adopting in your letter to me of the 21st of November 2012.
In addition to the above, in his letter to me of the 2nd of November 2012 the Hon. Attorney General sought to justify the continuation of your enquiry alongside the criminal investigation by referring to the proceedings before the Leveson Enquiry in the United Kingdom. He advised me that the concerns which I raised ought to be left to your good sense as you would have a better grasp and appreciation of the evidence and be able to take such steps as you deem necessary. I am at a complete loss to understand how you be be able to achieve this without being fully informed by him of the scope of the criminal investigation. The Hon. Attorney General also took the position and he could not advise you on how to conduct your Enquiry as you were wholly independent and need only take advice from Counsel appointed to assist you in the conduct of your Commission.
I again wrote to the Attorney General by letter dated the 8th of November 2012 setting out in detail the reasons why I considered the continuation of your enquiry, without at least the terme of reference being varied, to be wrong. These reasons are adumbrated below:
(i) There is every likelihood that the Commission will not conclude for at least a year.
(ii) The report by the Commissioner, at best could only recommend a prosecution.
(iii) There will still need to be a criminal investigation as the quality of the evidence before the Commission is unlikely to meet the threshold required for a criminal prosecution.
(iv) The continuation of your enquiry can only serve to delay a prosecution and jeopardise the Police investigation. The relevant evidence (including documents) of all witnesses who have already appeared before you will need to be re-taken in a properly admissible form for any credible prosecution to be mounted.
(v) Other substantial evidence not before the Enquiry will be required, for example from foreign witnesses.
(vi) There would be a greater sense of outrage if the continuation of your enquiry were to result in a potentially strong and credible prosecution being stayed as an abuse of process than there would be if your enquiry into any criminal conduct were adjourned until the conclusion of the criminal investigation and proceedings.
(vii) The substance of the criminal allegations that is being investigated has already been determined. There is no good reason why your Commission should be concerned with the making of recommendations on what is already known.
(viii) The continuation of the Commission and the publicity surrounding it and any subsequent report may well ground an application to stay any subsequent trial as an abuse of process.
(ix) It would be impossible for your enquiry to continue without examining who did what to whom without prejudicing the Police investigation and any subsequent criminal proceedings.
(x) I have a duty to the public to take steps to ensure due process by preventing prejudice, whether by way of pre-trial publicity or otherwise, and whether or not any potential defendant were to take the point.
(xi) I must also guard against a defendant exploiting pre-trial publicity with a view to derailing a subsequent trial. In this context, may I hasten to point out that on the 23rd and 24th of October 2012 extracts of the witness statement to the Commission of Mr Lawrence Duprey were published in two daily newspapers although he is yet to give evidence before your enquiry. You were obviously concerned as to how the media managed to gain access to this witness statement. I share that concern.
(xii) There has been a material change in circumstances since your ruling on the 6th of July 2011 on Mr. Duprey’s application for stay. There is a criminal investigation which is now active. The scope and the issues being investigated are quite clearly defined.
(xiii) I am concerned that you may make and report findings of fact sufficient to drive you to recommend criminal proceedings. That would be no different, in my view, from a magistrate in a preliminary enquiry making a finding that there is a prima facie case. At least in such proceedings a defendant has the protection afforded by section 41 of the Indictable offences (Preliminary Enquiry) Act which prohibits the reporting of evidence. Here, the enquiry is sitting in public with full and live media access without any restriction on what may be published of the proceedings before it. To make matters worse, evidence to which the usual legal principles have not been applied is being treated as fact by the media and the public. You are no doubt aware of the blanket coverage which your enquiry has attracted.
(xiv) Pre-trial publicity cannot only prejudice criminal proceedings but also the antecedent criminal investigation. This view recognizes competing public interest considerations of ensuring a fair trial and open justice. In addition, the fair trial rights of potential defendants are at risk.
(xv) Given the Terms of Reference of your Commission and the contents of my letter to the Hon. Attorney of the 10th of September 2012, the Hon. Attorney is well aware that any evidence before the Commission and any adverse findings by the Commissioner may be damaging to potential defendants.
(xvi) Potential defendants may suffer prejudice merely by having to claim the privilege against self-incrimination or by having to answer questions which are incriminating.
I respectfully cautioned the Hon. Attorney that any failure by him to act now to advise His Excellency the President to at least vary the terms of your Commission may lead one to conclude that he was abdicating his duty to preserve the integrity of the administration of criminal justice in this case. As such, I invited the Hon. Attorney to reconsider his position on not advising His Excellency the President to suspend your Commission or to vary your terms of reference. I also indicated that I would be issuing a warning to the press in relation to the criminal investigation and that I would as a matter of courtesy, be writing to inform you that an investigation had commenced.
As I was confident that the Hon. Attorney would act to inform you fully of the criminal investigation and of my concerns I did not consider it necessary at that stage to advise you of my position regarding the continuation of your enquiry. This is why I issued the warning to the media and wrote to you on the 8th of November 2012 to advise that I had taken this step. Your advice to me in your letter of the 21st of November 2012 that you would continue to sit in public and with full media access has therefore intensified my concerns about the prospect of severe and unnecessary prejudice being caused to the investigation and any potential subsequent trial.
My confidence appears to have been misplaced as the Hon. Attorney does not appear to have reconsidered the matter and he has not responded to my letter to him of the 8th of November 2012. In addition, extracts of my letter to the Hon. Attorney of the 10th of September 2012 in which I set out the allegations to be investigated were leaked, not by me, to the media and published in the edition of the Sunday Guardian for the 25th of November 2012. This publication does not alter my view that, as a full criminal investigation has now commenced involving the same parties and issues into which you are now enquiring, you should respectfully proceed with caution. Owing to the risk of prejudice to the investigation and any potential or related proceedings, I am certain that you cannot find such a risk to be so small that it ought to give way to the continuation of your Enquiry, in the public interest. Therefore, lest I be accused of professional insouciance, in light of the grave inaction on the part of the Hon. Attorney General and the matters disclosed herein, it is my duty to invite you respectfully to refrain from doing any of the following:
(i) In respect of evidence which is already before you:
(a) make any finding however phrased that any person or entity may have committed a criminal offence;
(b) make any findings, observations or recommendations as to whether there are any grounds for criminal proceedings against any person or entity; whether criminal proceedings should therefore be recommended to the Director of Public Prosecutions for his consideration;
(c) issue any Salmon letters to anyone; and
(d) compel any person to give evidence who has indicated an intention to exercise his or her privilege against self-incrimination.
(ii) With respect to the future conduct of your enquiry:
(a) receive any evidence that may be the subject of the criminal investigation whether or not it is in the public domain;
(b) receive any evidence pertaining to sub-paragraph 1(iii), (vii), (viii) and (ix) of your terms of reference
The above approach, which I commend to you, is consistent with that adopted by Lord Justice Leveson in his Inquiry into the Culture, Practice and Ethics of the Press in the United kingdom. As I had advised the Hon. Attorney in my letter to him of the 8th of November 2012, at the time the Leveson Inquiry was established there was an on-going criminal investigation. For that reason its Terms of Reference were split into two parts. Part 1, which deals broadly with the culture, practices, and ethics of the press, is currently proceeding. Part 2 is to inquire into the extent of unlawful or improper conduct by media organizations, the police, public officials and those responsible for holding personal data in relation to certain publications by News International and other media organizations. This part of the inquiry has been deferred until the end of the criminal investigation and any existing or resulting criminal proceedings so as to avoid prejudice. As your commission preceded the commencement of the criminal investigation steps may need to be taken by those with the appropriate authority to vary your terms of reference in order to ensure the above. I remain confident that you would do all that is necessary to achieve these ends.
Relatedly, my instructions are that the Police are already in possession of certain material concerning the collapse of the Hindu Credit Union. This material did not emanate from your Enquiry. By parity of reason and pending my obtaining a status report from the Police, it is my intention to direct that a full-scale criminal investigation also be commenced into that matter, presently.
I am aware that the 10th Evidence hearings of your Enquiry are due to commence on the 3rd of December 2012. If my above-mentioned suggestions do not find favour with you, I would be grateful if you were to timeously afford me a hearing in relation to these matters before you receive any further evidence pertinent thereto.
I anxiously await your urgent response.
Roger K. Gaspard
Director of Public Prosecutions