JAMAICA Law and Practice Contributed by: M. Georgia Gibson Henlin CD and KC, Henlin Gibson Henlin
3. Recent and Future Legal Developments 3.1 Significant Court Decisions or Legal Developments GLC v JAMBAR [2023] UKPC 6 The Jamaica Bar association challenged the aspects of POCA, specifically Sections 91A and 94 regarding disclosure, claiming they violated the constitutional rights of privacy, liberty and freedom from search of property. This case is extremely significant as it sets a binding precedent to follow, as the Privy Council over - turned the Court of Appeal’s decision and confirmed the Act is constitutional. The case also outlined key points which aid in the understanding of the operation of the sanction regime, namely: • that there is no obligation on an attorney-at-law to disclose privileged documents/information to its governing body; • if an occasional mistaken disclosure of privileged material takes place, then the GLC, which is fully legally qualified to spot the mistake, will be obliged to return any relevant privileged material on appre - ciating that an obvious mistake has been made; • the Act does not confer coercive powers of search and seizure; as such there is no infringement of the right to protection from search of property; and • protection of private life, privacy of other property and of communication would only be infringed if it could not be shown it was demonstrably justified in a free and democratic society. The regime is not unconstitutional as any breach is justified due to the importance of combating money laundering (detecting, preventing and prosecuting it), as well as the need for Jamaica to comply with its interna - tional obligations. Detective Sergeant Dwayne Falconer v Michelle Hall [2023] JMCA Civ 38 This case has been instructive in the development of the sanction regime as the Court of Appeal has explained the application of the reporting sanctions under POCA. The case concerned a report made by Sergeant Fal - coner in accordance with POCA for the forfeiture of USD45,366 from Ms Hall, as he suspected the cash
POCA Under POCA and its corresponding Regulations and Orders, the circumstances necessitating a report, as well as who receives the report, varies. For instance, in accordance with Section 91A(e)(ii) the competent authority appointed by the Minister can require busi - nesses to report in specified matters. Other circumstances under which these entities must submit a report include the following. Cash threshold reports This applies to financial institutions where any per - son of the institution conducts a cash transaction(s) amounting/ exceeding a particular threshold (remit - tance – USD5,000; Cambio – USD8,000; any other financial institutions – USD15,000). The report is made either on the institution’s own ini - tiative or as a result of the FID’s request (POCA Regu - lations, Section 3). It also applies to cross-border transactions, as any person who transports USD10,000 cash or more, into or out of the country may be required to report the relevant details to FID (Section 101). Suspicious transaction reports (POCA, Sections 94–96) An obligation is imposed on all businesses in the regulated sector, nominated officers and authorised officers to disclose any person’s engagement in a transaction that is related to money laundering, or any reasonable grounds to believe a transaction is related to money laundering. Financial activities reports (Legal Profession Act, Section 5 (3C)) Attorneys-at-Law, are required to disclose a decla - ration annually to the Governing Council indicating whether the attorney engaged in activities on behalf of any client which concern financial activities such as purchasing/selling property/a business, or managing banking accounts.
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