CASE BRIEF

The Jamaican Bar Association v the Attorney General and the General Legal
Council [2020] JMCA Civ 37

BETWEEN THE JAMAICAN BAR ASSOCIATION APPELLANT

AND THE ATTORNEY GENERAL 1ST RESPONDENT
AND THE GENERAL LEGAL COUNCIL 2ND RESPONDENT

Court: COURT OF APPEAL

Judgment Date: 31 July 2020

Coram: THE HON MRS JUSTICE MCDONALD-BISHOP JA

THE HON MR JUSTICE F WILLIAMS JA
THE HON MISS JUSTICE STRAW JA

Catchwords & Digest

Constitutional

1. PROCEDURAL HISTORY

1.1 The matter is an appeal from the Supreme Court of Judicature of Jamaica (Supreme
Court Civil Appeal No. 35/2017)

2. SUMMARY OF FACTS
2.1 On October 13, 2014, the Jamaica Bar Association filed a fixed date claim form
contending that provisions under The Proceeds of Crimes Act (POCA) as amended and
specifically in relation to The Proceeds of Crime (Designated Non-Financial Institution)
(Attorneys-at-Law) Order are unconstitutional, in so far as it provides for lawyers in
certain situations, to be deemed a "Designated Non-Financial Authority". The appellants
argued such order breaches sections 13(3)(a), 13(3)(c), 13(3) (j)(i), (ii) and (iii) and
section 16 of the Constitution. The respondents argued that the regime as it was not
unconstitutional and argued that the declarations being sought by the appellants should
be denied. The Full Court found that the declarations, stay and injunction sought should not
be granted and concluded that the Regime was constitutional . The Jamaica Bar Association
appealed.

3. ISSUE 1 – Whether the Regime undermines the principles of Legal Professional Privilege
(Constitutionally or otherwise)?
3.1 Full Court
CASE BRIEF
The Jamaican Bar Association v the Attorney General and the General Legal Council [2020] JMCA Civ 37

3.2 The Full Court was of the view that the Regime does not undermine the LPP and was of
the view that it protected and preserved it. The Court was of the view that there would
only be a few circumstances in which a legal context would exist as generally, the
activities outlined in a DNFI Order are generally not transactions within the legal context
and in the rare cases the GLC stands as a guard to protect the LPP as the examinations
would be conducted by them.

3.3 Court of Appeal

3.4 The Court of Appeal in addressing this issue looked at the monitoring functions of the
GLC ascribed by POCA and outlined that in their interpretation of the relevant sections
of POCA (91A, 91A(2) and 91A(3)) the GLC is authorized to among other things carry out
investigations and is authorised to share the said information with specified third parties
including foreign states. There is however an exemption in relation to the disclosing of
information or advice which is subject to LPP. However, LPP is expressly prohibited from
being claimed in relation to any matter in any form that was communicated or given
with the intention of furthering a criminal purpose.

3.5 The Court went further and examined the obligations of regulated attorneys being the
maintenance of identification and transaction verification procedures in accordance with
regulations 7 and 11; record-keeping procedures in accordance with regulation 14; risk
assessment obligations in accordance with regulation 7A; and procedures for internal/external
reporting in accordance with regulation 15 and sections 94 and 95 of the POCA.

3.6 Issue 2 - Whether the Regime subjects regulated attorneys-at-law to unconstitutional

searches and seizures

3.7 Full Court

3.8 The Full Court was of the view that the Regime does not subject regulated attorneys-at-law to
unconstitutional searches and seizures and declared that warrantless searches and seizures are
not authorised by the Regime. The POCA permits the GLC to examine and take copies of
information or documents in the possession or under the control of regulated attorneys-at-law
but only after notice has been given to them and their permission received. Therefore, the
presumption is that the GLC, when acting upon its statutory mandate, will act in a manner is in
line with the Constitution.

3.9 Appeal

3.10 The Appellants argue that the constitutional right of regulated attorneys-at-law to protection
from search has been breached by the Regime, through the powers given to the GLC under
section 91A(2) of the POCA in that it gave GLC the right to enter and search as well as gather
information without a warrant. Neither the POCA nor the Regulations have outlined the systems
and procedures for the execution of the examination powers of the GLC. Nor have they stated

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CASE BRIEF
The Jamaican Bar Association v the Attorney General and the General Legal Council [2020] JMCA Civ 37

the type of information that may be taken and shared with third party state agents. The
legislature has left it to the GLC, as the competent authority, to establish such measures as it
thinks fit. The Court noted that the GLC guidelines specifically at chapter 10 prescribed the
procedures for conducting an examination which outlines that the examinations are not
intended to be an audit of the practice of regulated attorneys-at-law but instead, a procedure by
which the GLC tests the adequacy of the programmes, policies, procedures, controls and
systems which are implemented to ensure compliance with the Regime. The court held that the
Appellant was correct in their contention of the issue.

3.11 Issue 3- Whether the Regime breaches the constitutional right to privacy or attorney-at-
law/client confidentiality

3.12 Full Court

3.13 The Full Court was of the view that the rights to privacy and confidentiality, as guaranteed by
sections 13(3)(j)(ii) and (iii) of the Charter, have been hindered by the disclosure, reporting and
record-keeping obligations imposed on regulated attorneys-at-law by the Regime. The Regime
restrains regulated attorneys-at-law from communicating frankly with their clients, which is a
breach of the constitutional rights to private life and protection of privacy of communication.

3.14 Appeal

3.15 The Appellant’s argument is that the independence of the Bar is a principle of fundamental
justice, which includes an attorney-at-law’s duty of commitment to the client’s cause. After a
comparative review of the Canadian and Jamaican regimes, an argument raised by the
Appellants; the Full Court concluded that unlike the Canadian Regime, this Regime does not
contain the concept of, "principles of fundamental justice" and there would be no basis to hold
in the Jamaican context, that commitment to the client's cause is a constitutional right. The Full
Court went on to opine that the nature of the information sought to be obtained in Jamaica, and
the safeguards inherent in the Regime, meant that any material collected by the GLC would be
within proper limits.

3.16 The Court of Appeal was of the view that in looking at the privacy rights, the information that is
required to be disclosed to the GLC/ FID relates to matters to which the constitutional right to
privacy confers. LPP is but a part of this constitutional right to privacy. So, even if LPP is well
protected, other information to which LPP is not attached should, be free from intrusion by
virtue of the protection guaranteed to it by the Charter. It follows that any intrusion in this zone
is an interference in the protected sphere of the private lives of regulated attorneys-at-law and
the communications between regulated attorneys-at-law and their clients, contrary to section
13(3)(j)(ii) and (iii) of the Charter.

3.16.1 The Court futher pointed out that the full Court was of the view that correct in asserting that the
regime infringed the right to privacy but came to the wrong conclusion that it was, despite this
breach, within limit, the Court of Appeal was of the view that it cannot be said, that the Regime
is within proper limits. Neither can it be said that the Regime has fulfilled the objectives of the
legislature, without breaching the constitutional rights of regulated attorneys-at-law. Their

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CASE BRIEF
The Jamaican Bar Association v the Attorney General and the General Legal Council [2020] JMCA Civ 37

constitutional rights have been infringed and it is appropriate to conclude that it will continue to
do so.

3.16.2 Issue 4 - Whether the Regime infringes attorneys-at-law's (and/or their clients’) right to
liberty in a manner that is unconstitutional
3.16.3 Appellant’s Submission
3.16.4 Respondent’s Submission
3.16.5 Analysis
3.16.6 Conclusion

4. APPELLANT SUBMISSION
4.1

5. RESPONDENTS’ SUBMISSION
5.1

6. DECISIONS/HOLDING
6.1

7. COURT’S RATIONALE
7.1

8. RATIONALE FOR DISSENTING OPINIONS

8.1 There were no dissenting opinions.

9. ANALYSIS/OPINION/SIGNIFICANCE OF THE CASE

9.1

10. CONCLUSION
10.1

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