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Monitoring compliance

Integrity requirements of parliamentarians not sidelined

Paula Llewellyn

Sunday, March 17, 2019

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We are aware of the recent news items in respect of the failure of 16 former parliamentarians and senators to fulfil their obligations under the Parliament (Integrity of Members) Act, hereinafter referred to as the Act, for the period 2014 to 2016, and inferentially, questions surrounding the responsibility of the Office of the Director of Public Prosecutions in respect of those matters.

To provide some context, the Act states at section 4 (1): “(1) Every person who is or was at any time after the 26th July, 1973 a parliamentarian shall furnish to the commission, a statutory declaration, subject to subsection (2), of his assets and liabilities, and his income in the form set out as Form A in the Second Schedule, at such times as may be required by or pursuant to this Act.

Section 15 of said Act then goes on to create an offence when it states that:

“Any person who - (a) fails, without reasonable cause, to furnish to the Commission a statutory declaration which he is required to furnish in accordance with the provisions of this Act;

(b) knowingly makes any false statement in any such statutory declaration;

(c) fails, without reasonable cause, to give such information as the commission may require under section 7;

(d) fails, without reasonable cause, to attend an enquiry being conducted by the commission under section 7; or knowing gives any false information in such enquiry, shall be guilty of an offence, and shall, on summary conviction thereof in a Resident Magistrate's Court, be liable to a fine not exceeding $200,000 or to imprisonment for a term not exceeding two years, or to both such fine and imprisonment, and where the offence involves the deliberate non-disclosure of a parliamentarian's property the court may, in addition to the imposition of a fine or term of imprisonment or both.

The Act also provides for the forfeiture of particular property involved under certain circumstances. Since 2009 our office has prosecuted various parliamentarians under this Act resulting in sentences ranging from the offender being admonished and discharged by the court, or ordered to pay a fine of up to $25,000.

In this era of accountability and transparency, it is our opinion that one of the main purposes of this Act is to provide a system that would strengthen the investigative capacity of an anti-corruption agency to determine if parliamentarians have illicit sources of wealth that they may have garnered through the improper use of their office. Accordingly, the Act has essentially criminalised an administrative breach. The Act ultimately is geared at ensuring compliance and is a time-sensitive provision, whereby if you have not filed the declaration by a particular time then this results in an administrative breach that is criminalised and will attract a court sanction.

The Parliament (Integrity of Members) Act also, for its purposes, established the Integrity Commission, tasked under section 4(5)(i) of the Act with the following functions:

(a) to receive and keep on record statutory declarations furnished by parliamentarians pursuant to this Act;

(b) to examine such statutory declarations and to request from a parliamentarian any information relevant to the statutory declaration made by him which in their opinion would assist them in their examination;

(c) to make such independent enquiries and investigations relating to a statutory declaration as they think necessary;

(d) to receive and investigate any complaint against a parliamentarian regarding an act of corruption within the meaning section 14 of the Corruption Prevention Act.

The process that had been employed in relation to matters that fall under the Parliament (Integrity of Members) Act was as follows:

The Integrity Commission informs the director of public prosecutions (DPP), by way of written communication, of those who have failed to carry out their obligations under the legislation. The DPP would then assign the matters to a senior officer for the necessary action to be taken.

Due to the sensitive nature of such matters, the files are generally handled by no more than the number of people necessary for their processing. Upon receipt of the communication the assigned senior officer would usually peruse relevant documents and issue a letter to the parliamentarian in breach, referred to as a “warning notice”. This notice would indicate an intention to proceed with the prosecution of the relevant offence(s) if there is failure to regularise their status within a specified time.

The parliamentarian would then make contact with the Integrity Commission to either complete their obligations or sort any issues in relation to documents filed with a view to effecting compliance. The commission would then advise the DPP of those members who have completed their obligations and prosecution of those individuals would, as a consequence, not be initiated. The DPP would also be alerted when parliamentarians remain delinquent, at which point there would be a request by the Integrity Commission for summonses to be prepared and the offender placed before the court. As the oversight body, the Integrity Commission would indicate those individuals for whom prosecution of the relevant offences would be required by virtue of continued delinquency. Any subsequent compliance or non-compliance by a parliamentarian would be brought to the attention of the DPP by the Integrity Commission, and the matters would be processed by the assigned senior officer.

While written communication in relation to those matters is the best practice, on occasion telephone contact would be made between the relevant individuals in both departments. Upon being made aware of the recent news reports an extensive audit was conducted in relation to these matters and it was determined that the relevant warning notices had, in fact, been prepared and sent out in respect of these files. However, our records do not reflect any follow-up being done upon the expiration of the warning notices.

Corruption prevention matters are very important and deserving of our expertise and attention. With the high volume of substantive criminal matters we face everyday numbering in the thousands, ranging in complexity to include very serious indictable matters such as murders, spanning all the Circuit Courts islandwide and matters in the Court of Appeal, regrettably the follow-up work was not done. This was an oversight by my office for which I take full responsibility.

Some senior members of the legal staff are active in at least four to five units and all members of the legal staff are active in multiple units, processing requests and rulings, while also dealing with their substantive court fixtures. Some of these units include the Anti-Gang Unit, Anti-Corruption, Coroners and Organized Crime Unit, Digital and Cyber Crimes Unit, Mutual Assistance and Financial Crimes Unit, and the Extradition Unit.

The Office of the Director of Public Prosecutions is not an investigative agency. We conduct prosecutions without fear or favour, once there is a viable case, based on files referred to us from other agencies. With the advent of the Integrity Commission Act of 2017 there have been increased powers of the commission. These include not only the detection and investigation of these offences, but also the power to prosecute such matters themselves. Since 2017 we have not received any referrals from the Integrity Commission. Nevertheless, the Office of the Director of Public Prosecutions is committed to offering assistance to the director of corruption prosecutions, at his request, as there is no bar to prosecution of these offences being initiated at this time if it is deemed appropriate so to do.

Paula V Llewellyn, QC, is the director of public prosecutions.


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