Introduction
It was submitted by the parties to the claim, the Jamaican Bar Association (JBA) and the General Legal Council (GLC), that certain aspects of AML/CFT regime1 of Jamaica, as it related to Attorneys-at-Law, erodes the essential confidentiality of the lawyer-client relationship and is incompatible with the Constitution of Jamaica, thus putting the continued integrity of legal professional privilege (LPP) at risk. The ability of Jamaican citizens to obtain reliable legal advice and representation rests on LPP.
The JBA is a company incorporated in Jamaica whose members are Attorneys–at–Law and whose objectives are (among other things) to promote the interests of attorneys in Jamaica. The GLC is the statutory body in Jamaica responsible for regulating the legal profession.
Litigation History
The JBA brought a claim seeking declaratory relief, injunctive relief, and other constitutional redress against the Attorney General and the GLC. On 4 May 2017, the Full (Constitutional) Court of Jamaica dismissed the JBA's claim and declared that the AML/CFT regime was constitutional. The JBA appealed. On 30 July 2020, the Court of Appeal of Jamaica allowed the JBA’s appeal in part. The Court of Appeal considered that certain of the provisions which form the AML/CFT regime contravened the Charter of Fundamental Rights and Freedoms whereas other provisions were valid and lawful. With leave of the Court of Appeal, the GLC and the Attorney General appealed to the JCPC.
Facts
Paragraphs 2 and 3 of the Proceeds of Crime (Designated Non- Financial Institution[DNFI]) 2 (Attorneys -at-law) Order 2013, defined Attorneys-at-law as NFIs because of certain activities they engaged in on behalf of any client which fell within any the following six categories of professional services: (a) purchasing or selling real estate; (b) managing money, securities or other assets; (c) managing bank accounts or savings accounts of any kind, or securities accounts; (d) organizing contributions for the creation, operation or management of companies; (e) creating, operating or managing a legal person or legal arrangement (such as a trust or settlement); or (f) purchasing or selling a business entity as reflected by FATF Recommendation 22.
Being designated as an NFI meant that Attorneys-at-Law were subject to the relevant provisions of the Jamaican Proceeds of Crime Act (POCA). The GLC has previously argued that the inclusion of Attorneys-at-Law in the regulated sector gave rise to additional obligations (over and above any which currently apply) which impact on the general duties of confidentiality owed by attorneys to their clients and their duty to preserve the privilege of their clients not to disclose certain communications.
The JBA considered that the duties imposed by the AML/CFT regime upon Attorneys-at-Law are unconstitutional because, inter alia, they undermined legal constitutional rights to liberty [s.13(3)(a) and s.14 of The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, privacy (including LPP) [s. 94 POCA-Suspicious Transaction reporting obligation] and protection from search of property [s. 91A POCA - inspection].
The JBA focussed its challenge on those provisions of the AML/CFT regime which, it says, violated for them or for their clients the guaranteed rights of privacy, liberty and freedom from search.
JCPC Judgment
The JCPC heard the appeals on November 29 and 30, 2022 and declared on February 9, 2023 that the AML/CFT regime of Jamaica does not contravene constitutional rights of attorneys and clients.3 Therefore, the decision of the Full (Constitutional) Court of Jamaica upholding the relevant AML/CFT legislation as it applies to Attorneys-at-Law should be restored.
Footnotes
1 The Jamaican statutory regime to combat money laundering is comprised of primary legislation, secondary legislation, and non–statutory guidance.
2 Equivalent to the FATF definition of Designated Non-Financial Businesses and Professions (DNFBPs).
3 The Attorney General (Appellant) v The Jamaican Bar Association (Respondent) (Jamaica); The General Legal Council (Appellant) v The Jamaican Bar Association (Respondent) (Jamaica) [2023] UKPC 6
On appeal from The Court of Appeal of Jamaica