SUMMARY OF WRITTEN JUDGMENT Re: Section 34

STVE FERGUSON V THE ATTORNEY GENERAL AND DPP

Intro

By October 2012, some 42 applications had been filed under the now repealed section 34. Linked to these applications were claims pursuant to section 14 of the Constitution. Each claimant sought principally a declaration that the repeal of section 34 was unconstitutional null and void.

It was agreed by all parties that three claims should be selected for hearing and that all others should abide their hearing and determination.

The selected claims were those of Steve Ferguson, Ameer Edoo and Maritime Life (Caribbean) Limited and others.

The Honourable Madam Justice Dean –Armorer delivered an oral and written judgment in the high publicised claims popularly referred to as “the section 34 matter” in which the above facts were outlined. The Honourable Judge dismissed the three selected claims i.e. Steve Ferguson, Ameer Edoo and Maritime Life and others and ordered the Claimant to pay to the Defendant the costs of and associated with the claim.

Notable paragraphs in the judgment

At paragraph 428 of her judgment – the Honourable Judge states:

“In my view the claimant has failed on the evidence to prove that any representative of the State made a promise to him that his prosecution would be discontinued.

At paragraphs 445 and 450 of her judgment – the Honourable Judge states:

445. “According to the Attorney General, it was the oversight of the entire Parliament that persons on historic corruption charges as well as those charged with sedition and terrorism would have had the facility of declaration of innocence if the requisite time had passed.

446. The means employed to achieve the objective was not only a simple repeal of the section but also a provision for its retrospective operation. Parliament set out to achieve the metaphorical clean slate.

447. In my view the measures designed to meet the objective cannot be described as irrational.

448&449 As to the third question, it is in my view accepted by all parties that the means used to accomplish the objective was a provision declaring existing proceedings to be void and a provision against the accrual of any rights, expectations and obligations under the repealed section. This was in effect the removal of a limitation provision. There was no effect on the merits of on-going criminal proceedings. The claimant continued to enjoy the presumption of innocence and the right to a fair trial…

450. The retroactive repeal was also achieved expeditiously, so as to minimise the possibility of the claimant acting to his detriment on the basis of the opportunity to avail himself of the limitation provisions.

At  paragraph 478 and 479:

478 . …“The Attorney General referred as well to other corruption probes and those connected to the other state enterprises. He told Parliament that the prosecution of other probes would be affected by section 34. While the “Ish and Steve duo” may have been part of his concern, it was no more that part of a wider concern that serious crimes should be tried on their merits, and not be dismissed pursuant to a mere limitation provision.”

At paragraph 499

“When the deluge of the public furore has subsided, section 34 would be seen for what it really is that is to say no more than a limitation provision providing for the dismissal of criminal proceedings not on the merits but on the ground of delay. Its repeal may have resulted in inconvenience to the claimant and to other persons who had been astute to institute application under section 34.”

The Court also rejected the Claimant’s submissions that the Amendment Act effectively prevented the claimant from completing proceedings which he had commenced under section 34, while it had been in force.

The Court further rejected the Claimant’s submissions that the Amendment Act was unconstitutional because it was “an impermissible response to popular pressure”: see paragraphs 385 – 389 of the judgment and that he had a legitimate expectation as the claimant failed to prove that he was the beneficiary of a promise or representation on which a legitimate expectation could be based: see paragraphs 412 -430 of judgment.