Gangar v. Her Worship Ejenny Espinet (Trinidad &amp; Tobago) [2008] UKPC 48 (03 November 2008)

Privy Council Appeal No 53 of 2007

Finbar Gangar 								Appellant

v.

Her Worship Ejenny Espinet	Respondent

FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 3rd November 2008

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Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Scott of Foscote
	Lord Walker of Gestingthorpe
	Lord Brown of Eaton-under-Heywood
	Lord Neuberger of Abbotsbury
	
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[Delivered by Lord Brown of Eaton-under-Heywood]

1.	From December 1995 to December 2000 the appellant was a member of parliament and government minister in the Republic of Trinidad and Tobago, a “person in public life” within the meaning of the Integrity in Public Life Act 1987 (“the 1987 Act”).  On 4 June 2004 two charges were laid against him alleging the making of false declarations as to his financial affairs in the calendar years 1998 and 1999, contrary to section 27(1)(b) of the 1987 Act.  The declarations were made respectively on 23 September 1999 (for the year 1998) and 10 October 2000 (for the year 1999).  The allegation is that the appellant failed to disclose in these declarations certain monies held jointly with his wife in accounts at JPMorgan Chase & Co., New York and Barclays Bank Plc, Jersey in the Channel Islands.

2.	On 10 October 2005 the respondent, the magistrate at the Port of Spain Magistrates Court, rejected two contentions advanced on the appellant’s behalf: first, that the offences charged were subject to a six months’ limitation period so that the respondent had no jurisdiction to proceed with them; secondly and in the alternative that the two charges should be heard together.

3.	On 31 July 2006 Bereaux J, on the appellant’s application for judicial review of both those rulings, dismissed the challenge based on the contended for time limit but allowed it to the extent of ordering the two charges to be heard together.

4.	On 15 March 2007 the Court of Appeal (Warner, Kangaloo, and Archie JJA) dismissed the appellant’s further appeal with regard to the limitation period (granting leave to appeal to the Privy Council on 2 July 2007).

5.	On 9 April 2008, following the judgments in the present appeal, the Board gave judgment in Basdeo Panday v Senior Superintendent Wellington Virgil [2008] UKPC  24, [2008] 3 WLR 296, an appeal similarly concerning allegations of the making of false declarations under the 1987 Act which Mr Panday (an ex-Prime Minister of Trinidad and Tobago) had contended were time-barred.  Mr Panday made his declarations respectively on 9 April 1999 (for the year 1997), 23 December 1999 (for the year 1998) and 21 March 2001 (for the year 1999) and the charges in his case were laid on 18 September 2002.  The Board held that they were not out of time; rather the offences had been subject to a five-year time limit.  In particular, the Board rejected an argument that, following upon the repeal of the 1987 Act and its replacement by the Integrity in Public Life Act 2000 (as amended by the Integrity in Public Life (Amendment) Act 2000) (together, the 2000 Act), with effect from 6 November 2000, the six months time limit (which for the purposes of the argument it was assumed would apply to complaints under the 2000 Act) would thenceforth apply also to prosecutions under the 1987 Act.

6.	As Mr Amlot QC for the present appellant now recognises, the decision in Panday requires him to distinguish that case on the facts so as to enable him to mount a different legal argument and this is what he seeks to do.  Before explaining that argument, however, it is necessary to repeat here some at least of the statutory materials set out in Panday and it is convenient at the same time to set out certain further provisions of the 2000 legislation which bear upon the correctness or otherwise of the assumption hitherto made as to the 2000 Act introducing a six months time limit.

7.	Section 27(1) of the 1987 Act provides that a person who knowingly makes a declaration that is false in some material particular commits a summary offence.  Section 28 states:

“No prosecution for an offence under this Act, other than an offence under section 12(2) [the disclosure of confidential information by members of the Integrity Commission or those working for it], may be instituted (a) without the written consent of the Director of Public Prosecutions; or (b) after five years from the date when the person in respect of whose declaration or financial affairs the alleged offence was committed, ceased to be a person in public life.”

8.	Consistently with section 28(b), section 23 of the 1987 Act made provision for inquiries into “the accuracy or fullness” of declarations filed by those in public life and by subsection 4 provided:

“An inquiry may not be commenced after five years from the date when the person in respect of whose declaration the inquiry is being conducted ceased to be a person in public life.”

9.	With effect from 6 November 2000, however, two new Acts came into force, the Integrity in Public Life 2000 (the unamended 2000 Act) and the Integrity in Public Life (Amendment) Act 2000 (the Amendment Act).  The unamended 2000 Act by section 16(3) reproduced what had been provided by section 23(4) of the 1987 Act and in section 21(5) re-enacted in full section 28 of the 1987 Act.  In other words, the unamended 2000 Act required respectively that any enquiry into the accuracy of a declaration be commenced, and that any prosecution for the making of a false declaration be instituted, within five years of when the person concerned ceased to be in public life.

10.	The Amendment Act, however, deleted section 16(3) of the unamended 2000 Act so as to exclude the requirement for an enquiry to be brought within five years of the person leaving public life (with the result that enquiries can be held at any future time into declarations made by people previously in public life under either the 1987 Act or the 2000 Act).  Similarly it deleted the prohibition in section 21(5) of the unamended 2000 Act (originally in section 28(b) of the 1987 Act as set out in para 7 above) against prosecuting in respect of false declarations more than five years from when the person left public life.  The 2000 Act in addition provides that the Commission, if satisfied after an enquiry that an offence has been committed, must refer the matter to the Director of Public Prosecutions (“DPP”).

11.	All of this strongly suggests that Parliament was concerned to strengthen this legislation, designed as it is to combat the scourge of corruption in public life in Trinidad and Tobago, rather than weaken it by introducing a substantially shorter limitation period for prosecutions, and it is unsurprising to note, as recorded by Bereaux J at para 30 of his judgment, the Attorney General during the Senate debate on the Amendment Bill saying:

“One very important observation which was made was that under section 16 of the new Integrity in Public Life Act, the powers of the Integrity Commission were somewhat restricted, in that inquiries related to offences under the Act and the conduct of investigations under Part V could only have been initiated within five years of a person in public life demitting office.  It was the thinking in the other place that the Integrity Commission should be enabled to conduct an inquiry of investigation relating to a person who has held public office at any time, even though that person has demitted office and ceased to be a person within the meaning of the Act.”

12.	The assumption that nonetheless the 2000 Act introduced a six months time limit was based on section 33(2) of the Summary Courts Act 1918 (as amended) which provides:

“In every case where no time is specially limited for making a complaint for a summary offence in the Act relating to such offence, the complaint shall be made within six months from the time when the matter of the complaint arose, and not after.”

The argument underlying the assumption is, quite simply, that since the Amendment Act deleted the special five-year time limit for making complaints under the 2000 Act, the six months limit provided for by section 33(2) of the 1918 Act applies.  Their Lordships will return later to consider the correctness of this argument.  Meantime, however, they will continue to make the assumption made in Panday on which Mr Amlot’s new argument is based.  The argument accepts that the appellant was rightly charged under the 1987 Act: as section 27(1)of the Interpretation Act 1962 provides:

“Where a written law repeals or revokes a written law, the repeal or revocation does not, except as in this section otherwise provided, and unless the contrary intention appears . . . (b) affect the previous operation of the written law so repealed or revoked, or anything duly done or suffered thereunder; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the written law so repealed or revoked; (d) affect any offence committed against the written law so repealed or revoked, or any penalty or forfeiture or punishment incurred in respect thereof; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as mentioned above, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the written law had not been repealed or revoked.”

Nonetheless, submits the appellant, the six months time limit (assumed to apply) under the 2000 Act should be given retrospective effect because this alteration of the time limit is to be regarded as procedural only and not substantive since the right of the prosecutor to prosecute (at any rate in respect of the declaration made on 10 October 2000) was not lost; the introduction of the reduced six months time limit on 6 November 2000 still left the prosecutor with some five months in which to make the complaint.

13.	The appellant’s argument on the retrospectivity of the six months time limit centres on three authorities in particular: The Ydun [1899] P 236, R v Chandra Dharma [1905] 2 KB 335 and Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553.  The Ydun concerned a negligence action against a port authority brought by the owners of a barque which had run aground on 13 September 1893.  At that date a six-year limitation period applied.  On 1 January 1894 there came into force the Public Authorities Protection Act 1893 which cut the limitation period for claims against public authorities from six years to six months.  The barque owners issued their writ on 14 November 1898.  If the 1893 Act applied retrospectively to their cause of action they were out of time:  they would have had only until 13 March 1894 (two and a half months after the 1893 Act took effect) to issue their writ.  The Court of Appeal held the writ to be statute barred.  A L Smith LJ said, at p245: 

“[W]here the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act.  The Act of 1893 is an Act dealing with procedure only.”

Vaughan Williams LJ agreed, saying at p246: 

“[T]here is abundant authority that the presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the Courts.”

Romer LJ also agreed.

14.	The Ydun was applied in a criminal context in Chandra Dharma.  The accused there was charged with an offence against a child committed on 15 July 1904 when a three months time limit applied to the prosecution of such offences.  On 1 October 1904 there came into force section 27 of the Prevention of Cruelty to Children Act 1904 which extended the time limit for such prosecutions from three months to six months.  The accused was charged on 27 December 1904.  If the 1904 Act applied retrospectively to the offence, the prosecution was in time; otherwise it was out of time: the prosecution would have had to begun by 15 October 1904, ie within two weeks of the new Act coming into force.  The prosecution was held to be in time.  Lord Alverston CJ (presiding over a five judge Court) said (at p338):

“It has been held [in The Ydun] that a statute shortening the time within which proceedings can be taken is retrospective, and it seems to me that it is impossible to give any good reason why a statute extending the time within which proceedings may be taken should not also be held to be retrospective.”

Channell J agreed (p339):

“[A]n alteration of the time within which they might be prosecuted, whether by extension or diminution, was a matter of procedure only.  If the time under the old Act had expired before the new Act came into operation the question would have been entirely different, and in my view it would not have enabled a prosecution to be maintained even within six months from the offence.”

15.	Yew Bon Tew concerned a claim for damages for negligence against a public bus service arising out of a road accident on 5 April 1972.  At that date an action against a public authority in Malaysia had to be brought within 12 months.  On 13 June 1974 there came into force the Public Authorities Protection (Amendment) Act 1974 which substituted a period of three years for the 12 month limitation period previously in force.  The plaintiffs issued their writ on 20 March 1975, seeking to rely on the amending legislation.  The claim failed: the 12 month limitation period had already expired and the defendants, therefore, had already acquired an entitlement to plead a time bar before the amending legislation extending the time limit took effect.  Giving the judgment of the Board Lord Brightman (at pp562-563) said:

“Whether a statute has a retrospective effect cannot in all cases safely be decided by classifying the statute as procedural or substantive.  For example in The Ydun [1899] P 236 the barque might have grounded on May 13 instead of September 13, 1893 and the Act might have come into force on December 5, 1893, when it received the Royal Assent, instead of 27 days later.  Had those been the facts the Act would, if its procedural character were the true criterion of its effect, have deprived the owners of their ability to pursue their cause of action on the day the Act reached the statute book.  A limitation Act which had such a decisive effect on an existing cause of action would not be ‘merely procedural’ in any ordinary sense of that expression.  Their Lordships assume (without expressing an opinion) that The Ydun, was, on its facts, correctly decided.  

Their Lordships consider that the proper approach to the construction of the Act of 1974 is not to decide what label to apply to it, procedural or otherwise, but to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations. . . . . 

The Public Authorities Protection Act 1893 can be regarded as procedural on the facts of The Ydun case, but a slight alteration to those facts would have made it substantive.  A limitation Act may therefore be procedural in the context of one set of facts, but substantive in the context of a different set of facts.”

16.	Founding on those authorities the appellant submits that because here the prosecutor still had some five months within which to make his complaint even were the six months limitation period introduced by the 2000 Act to be applied retrospectively, he cannot argue that such retrospective application would have a substantive effect upon the position by depriving him of his ability to prosecute.

17.	The Board rejects this argument.  In the first place, their Lordships cannot regard the position in the present appeal as akin to that arising in the three authorities relied on.  Each of those cases involved a fresh statutory provision introducing a new time limit and thereby either lengthening or shortening a time limit already existing for bringing either a civil claim or a criminal prosecution.  Here by contrast the 2000 Act repealed the 1987 Act in its entirety and substituted for it a self-contained new legislative regime.  There was no amendment affecting anything arising under the 1987 Act.  Once, therefore, it is accepted that the appellant was rightly charged under the 1987 Act, section 27(1) of the Interpretation Act dictates the rest: as was pointed out in the Board’s judgment in Panday (para 13):

“section 27 expressly allows ‘legal proceedings’ to ‘be instituted’ in respect of ‘any offence committed against the written law so repealed’ ‘as if the written law has not been repealed’.”

Secondly, even were that not so and were the authorities to be directly in point, their Lordships would be quite unable to regard the suggested effect of the retrospective application of the assumed new six months time limit here as “merely procedural”.  Section 23 of the 1987 Act, it must be recalled, made provision for inquiry into the accuracy of declarations to be commenced at any time within five years of the person ceasing to be in public life.  This very appellant remained in public life until December 2000, a month after the 2000 Act came into force.  Manifestly before any prosecution could be instituted there would need to be an investigation into the matter (which would very likely not be possible until the person left office).  It appears to the Board nothing short of absurd to suppose that in enacting and bringing into force the 2000 Act Parliament intended that any declarations made within the previous six months had to be investigated and, if found false, made the subject of prosecution within whatever may have been left of the six month period—let alone that any earlier declaration, such as that made by the appellant on 23 September 1999, should be regarded as out of time for prosecution on the basis that “the evidence on the first charge could be used as similar fact evidence on the second charge” (as the appellant argues).

18.	Their Lordships confess to some difficulty in the concept of construing legislation (such as the amending Limitation Acts in question in the cases discussed above), so as to decide whether it operates retrospectively or not, by reference to the particular facts of the case and some further consideration may need to be given to this in future.  For the purposes of the present appeal, however, that is not necessary.

19.	Their Lordships now return, as promised, to the question whether indeed a six months time limit now applies to prosecutions under the 2000 Act itself, the assumption hitherto made both in Panday and in the Board’s judgment thus far.  This question was an issue in the courts below.  Bereaux J decided in the prosecutor’s favour that no time limit applied under the 2000 Act.  Pointing in particular to the sections in the 2000 Act allowing for inquiries to be held at any time into declarations made by people who had ceased to be in public life and the requirement for the Commission, if satisfied by such inquiry that an offence has been committed, then to refer the matter to the DPP, he concluded (para 31):

“[A] prosecution by the Director, whether in respect of the 1987 Act or the 2000 Act, is unlikely to be commenced within six months of the filing of the declaration and in those circumstances it could not have been the intention of Parliament, in repealing section 21(5) of the 2000 Act, to have reduced the limitation period from five years to six months, rather, it is the contrary, that is to say, Parliament by its repeal of section 21(5) intended that there be no limitation at all.”

20.	Kangaloo JA, giving the only reasoned judgment in the Court of Appeal, at para 11 simply took “the appellant’s case at its highest” and “proceed[ed] on the basis that the limitation period under the Amended 2000 Act is six months” i.e. he made the assumption made by the Board in Panday.

21.	Their Lordships have already (at para 12) set out section 33(2) of the 1918 Act and the appellant’s argument based upon it.  Section 33(2), Mr Amlot points out, is unambiguous and apparently absolute in its effect.  The Board has nevertheless reached the clear view that the argument is mistaken and that Bereaux J was correct in his conclusion.  It is necessary here to refer to two further provisions in the Interpretation Act 1962:

“67. Where in a written law an offence is declared to be punishable on summary conviction, the procedure in respect of the trial and punishment of the offence and the recovery of the penalty, and all matters incidental to or arising out of the trial and punishment of the offence or  the recovery of the penalty shall be in accordance with the Summary Courts Act.”

“2(1). Every provision of this Act extends and applies to every written law passed or made before or after the commencement of this Act, unless a contrary intention appears in this Act or the written law.”

22.	Parliament’s intention in making the amendments to the Unamended 2000 Act, described in paragraphs 10 and 11 above (and discussed by Bereaux J at para 31 of his judgment), appears to their Lordships so entirely plain and consistent with the evident purpose of the legislation that it is impossible not to conclude within the meaning of section 2(1) of the Interpretation Act that “a contrary intention appears in . . . the written law [ie the 2000 Act]” so as to disapply what otherwise would be the requirement under section 67 of the Interpretation Act that section 33(2) of the Summary Courts Act 1918 be applied to limit the time for prosecutions under the 2000 Act.

23.	The Court of Appeal thought it best to leave the issue of whether a time limit for prosecutions exists under the 2000 Act until a case arises under that Act, and hoped in the meantime that the Law Revision Committee would look at it.  Their Lordships prefer rather to hold that no time limit applies under the 2000 Act, leaving it to Parliament specifically to introduce such a limitation if it really wishes to do so.

24.	The Board turn finally to the respondent’s submission based on section 9 of the Judicial Review Act 2000 that judicial review proceedings should not have been brought here in any event.  Section 9 provides:

“The Court shall not grant leave to an applicant for judicial review of a decision where any other written law provides an alternative procedure to question, review or appeal that decision, save in exceptional circumstances.”

25.	Their Lordships are quite satisfied that the circumstances here were exceptional and that judicial review provided an appropriate way of deciding the two rulings under challenge.  Clearly it was convenient to obtain an early binding decision on whether the two charges should be decided separately or together.  Equally it was convenient, indeed highly desirable, to decide at an early stage whether or not the charges were statute barred, a pure question of statutory construction.  As Kangaloo JA observed (at para 30):

“I can see no useful purpose being served by going through a full-blown hearing before a Magistrate with all the concomitant expenditure, stress and inconvenience and a possible conviction, only to be vindicated on appeal in the criminal proceedings, when a judicial review application, based solely on questions of interpretation of statutes, is available.”

Their Lordships agree.

26.	In the event, however, their Lordships are clear that the charges which the appellant faces are not statute barred.  His appeal must accordingly be dismissed with costs.