Disclosure of information, public interest immunity and the privilege against self-incrimination in the british Virgin Islands

• Author: Graeme Broadbent/Hugh Rawlins
• Position: LL.B. (Liverpool), M.Phil. (CNAA), Senior Lecturer in Law, University of Sunderland, formerly Lecturer in Law, University of the West Indies/B.A., LL.B., LL.M. (UWI), Barrister and Solicitor, Lecturer in Law, University of the West Indies, formerly Solicitor General, St. Kitts and Nevis
• Pages: 26-48

DISCLOSURE OF INFORMATION, PUBLIC

INTEREST IMMUNITY AND THE PRIVILEGE

AGAINST SELF-INCRIMINATION IN

THE BRITISH VIRGIN ISLANDS

GRAEME BROADBENT*

and

HUGH

RAWLINS**

The decision of the Court of Appeal of the Eastern Caribbean States in

Arawak Trust Co. Ltd. v. Inspector of Banks and Trust Companies,1 raises some

important points regarding the respective legal rights and duties of public

inspectors and persons under investigation by them.2 The case was part of the

worldwide fallout from the collapse of the Bank of Credit and Commerce

International SA. The Inspector of Banks and Trust Companies of the British

Virgin Islands3 had obtained a search warrant authorizing him to search the

premises of the appellant, a trust company which managed the affairs of several

companies in the British Virgin Islands. The warrant was in respect of

documents which related to eight companies managed by the appellant

company. The Inspector executed the warrant and, in the process, seized a

number of documents. These documents were returned to the company on the

following day.

LL.B.

(Liverpool), M.Phil. (CNAA), Senior Lecturer in Law, University of Sunderland,

formerly Lecturer in Law, University of the West Indies.

B.A., LL.B., LL.M. (UWI), Barrister and Solicitor, Lecturer in Law, University of the

West Indies, formerly Solicitor General, St. Kitts and Nevis.

1 (1994) 47 W.I.R. 151. (Sir Vincent Floissac, C.J.; Byron and Singh, JJ.A.). On appeal

from the High Court of the British Virgin Islands. This case is referred to hereinafter as

"the Arawak Trust case" or "Arawak Trust."

2 See also Company Management Act 1990 and Company Management (Amendment)

Act 1995, which regulate the activities of the Inspector of Company Managers.

3 Hereinafter referred to as "the Inspector".

The company sought judicial review of the actions of the Inspector. In

addition, it sought various declarations. One declaration which it sought was

that the Inspector was under a statutory duty not to disclose any of the

information contained in the documents to any unauthorized person. It also

sought a declaration that the Inspector had acted unlawfully, if he had in fact

disclosed any of the information to anyone. The appellant company further

urged the Court to order the Inspector to say whether he had disclosed any of

the information, and, if

so,

to whom and in what circumstances.

In his affidavits, the Inspector did not admit or deny that he had disclosed to

anyone any information which he had obtained as a result of the execution of

the search warrant. He claimed that all of his actions in the matter were carried

out on the advice of the Attorney General, who had represented him in the

High Court. The Attorney General was also the Director of Public

Prosecutions. He urged the Court to deny the application of the company with

respect to the disclosures which it sought of him, on the grounds of public

interest immunity and privilege against self-incrimination. In the High Court,

Georges J rejected the claim of the Inspector to public interest immunity, but

upheld his plea of privilege against self-incrimination.

The judgment of the Court of Appeal was delivered by the Chief Justice, Sir

Vincent Floissac. In the judgment, the Court identified three issues. The first

issue was whether the mere suspicion of a breach of the statutory duty of non-

disclosure which was imposed upon the Inspector by section 24 of the Banks and

Trust Companies Act 1990,4 was a sufficient ground for an order for disclosure

of the information demanded by the appellants. The second issue was whether

the Inspector was entitled to the benefit of the plea of public interest immunity.

The third was whether the Inspector was entitled to the benefit of the plea of

privilege against self-incrimination. The Court of Appeal found in favour of the

Inspector on all three grounds.

The present writers are of the view that the decision of the Court of Appeal

in this case is correct on the facts, and provides important safeguards to public

officials charged with the investigation of possible commercial malpractice.

However, it is submitted that the reasoning by which the Court arrived at the

decision may present problems in future cases. It is from this perspective that the

issues as they were discussed by the Court in the case are analysed. First,

however, the relevant statutory provisions which set out the duties of the

Inspector are reproduced in order to facilitate a better appreciation of the issues.

4 No. 9 of 1990, hereinafter referred to as "the 1990 Act".